Common use of Third Party Offer Clause in Contracts

Third Party Offer. Prior to the consummation of any sale of all ----------------- or any portion of the FS Shares to a Third Party pursuant to Section 5.4(a), FSEP IV and/or Xxxxxx Xxxxxxx shall cause each bona fide offer from such Third Party to purchase such FS Shares from FSEP IV (an "FS THIRD-PARTY OFFER") to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICE") to the Stockholders. Each FS Third-Party Offer shall include an offer to purchase Shares from the Stockholders in the amounts determined in accordance with Section 5.4(c), at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party Offer. If any Stockholder desires to accept the offer contained in the FS Initial Offer Notice, such Stockholder shall furnish written notice to FSEP IV, within 20 days after its receipt of the FS Initial Offer Notice, indicating such Stockholder's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares such Stockholder agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICE"). If such Stockholder does not furnish an FS Acceptance Notice to FSEP IV in accordance with these provisions by the end of such 20-day period, such Stockholder shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares set forth in the FS Acceptance Notice of such Stockholder together with the Shares proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx to the Third Party are referred to collectively as "ALL OFFERED SHARES". Within three days after the date on which the Third Party informs FSEP IV of the total number of Shares which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV shall send written notice (the "FS FINAL NOTICE") to such Stockholder setting forth the number of Shares such Stockholder shall sell to the Third Party as determined in accordance with Section 5.4(c), which number shall not exceed the maximum number specified by such Stockholder in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV to facilitate the sale), such Stockholder shall furnish to FSEP IV (i) a written undertaking to deliver, upon the consummation of the sale of Shares to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares held by such Stockholder which will be transferred pursuant to such FS Third-Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARES") and (ii) a limited power-of-attorney authorizing FSEP IV to transfer the Stockholder Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder shall be required to make representations and warranties in connection with such transfer with respect to its own authority to transfer and its title to the Shares transferred. In any such transaction, such Stockholder will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and the Company to facilitate the transaction.

Third Party Offer. Prior In the event the Xxxxxxxxx Parties receive a bona fide written offer from a third party to purchase all but not less than all of the Right Securities for a price and/or terms that are inferior to the consummation of any sale of all ----------------- or any portion of the FS Shares to Initial Offer (a Third “Third-Party pursuant to Section 5.4(aOffer”), FSEP IV and/or Xxxxxx Xxxxxxx the Xxxxxxxxx Parties shall cause each bona fide offer be prohibited from accepting such Third Third-Party to purchase such FS Shares from FSEP IV (an "FS THIRD-PARTY OFFER") to be reduced to writing and Offer unless they shall send written have first given FMC notice of such FS Third-Party Offer (including the "FS INITIAL OFFER NOTICE") to identity of the Stockholders. Each FS Person making such Third-Party Offer), whereupon FMC shall be entitled, during the following 30 calendar days after its receipt of such Third-Party Offer shall include an offer to match the Third-Party Offer by offering to purchase Shares the Right Securities from the Stockholders Xxxxxxxxx Parties on terms that are substantially identical to those contained in the amounts determined in accordance with Section 5.4(c), at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party Offer. If any Stockholder desires to accept FMC timely matches the offer contained in Third-Party Offer, the FS Initial Offer Notice, such Stockholder Xxxxxxxxx Parties shall furnish written notice to FSEP IV, within 20 days after its receipt of the FS Initial Offer Notice, indicating such Stockholder's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares such Stockholder agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICE"). If such Stockholder does not furnish an FS Acceptance Notice to FSEP IV in accordance with these provisions by the end of such 20-day period, such Stockholder shall be have been deemed to have irrevocably rejected the accepted such offer contained in the FS Initial Offer Notice. All Shares set forth in the FS Acceptance Notice of such Stockholder together with the Shares proposed to be sold by FSEP IV and, if applicablewith FMC, Xxxxxx Xxxxxxx to shall establish a closing date (which shall be a Business Day) for the Third Party are referred to collectively as "ALL OFFERED SHARES". Within three days after the date on which the Third Party informs FSEP IV sale and purchase of the total number of Shares which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV shall send written notice Right Securities (the "FS FINAL NOTICE") to such Stockholder setting forth the number of Shares such Stockholder shall sell to the Third “Third-Party as determined in accordance with Section 5.4(cOffer Closing Date”), which number Third-Party Offer Closing Date shall not exceed the maximum number specified by such Stockholder in its FS Acceptance Notice. Within five be no later than 30 calendar days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV to facilitate the sale), such Stockholder shall furnish to FSEP IV (i) a written undertaking to deliver, upon the consummation delivery of FMC’s acceptance of the sale of Shares Third-Party Offer, as such period may be extended to obtain any required regulatory approvals. On the Third Party as indicated in the FS Final Notice, the certificates representing the Shares held by such Stockholder which will be transferred pursuant to such FS Third-Party Offer Closing Date, (such shares i) the Xxxxxxxxx Parties shall be referred deliver to herein as FMC a certificate or certificates evidencing the "STOCKHOLDER INCLUDED SHARES") Right Securities together with a stock transfer power executed in blank against receipt of immediately available funds in an amount equal to the purchase price set forth in the Third-Party Offer and (ii) a limited powerthe Xxxxxxxxx Parties and FMC shall enter into such other customary agreements as are necessary to cause the Third-ofParty Offer Closing to occur. All such agreements shall contain representations, warranties and covenants (and indemnification provisions related thereto) no less favorable to FMC than those contained in Articles II, VI and IX of the Purchase Agreement, and all Right Securities shall be delivered free and clear of any Liens. If FMC declines or does not timely accept the Third-attorney authorizing FSEP IV Party Offer, the Xxxxxxxxx Parties shall be entitled to transfer complete the Stockholder Included Shares pursuant sale of the Right Securities on the terms of the Third-Party Offer; provided, however, if Xxxxxxxxx Inc. has not completed the transaction contemplated in the Third-Party Offer within 120 calendar days after FMC’s acceptance or rejection of such offer, as such period may be extended to obtain any required regulatory approvals, Xxxxxxxxx shall again be subject to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder shall be required to make representations and warranties in connection with such transfer with respect to its own authority to transfer and its title to the Shares transferred. In any such transaction, such Stockholder will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and the Company to facilitate the transactionthis Section 3.4.

Third Party Offer. (a) Prior to the consummation of any sale of all ----------------- or any portion of the FS Shares shares of Common Stock or other Securities held by the Investor to a Third Party pursuant to Section 5.4(a)Party, FSEP IV and/or Xxxxxx Xxxxxxx the Investor shall cause each bona fide offer from such Third Party to purchase such FS Shares shares from FSEP IV the Investor (an "FS THIRDa “Third-PARTY OFFER"Party Offer”) to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICE"“Initial Offer Notice”) to the Existing Stockholders and any other Persons who are parties to written agreements with the Investor entitling such stockholders to include shares of Common Stock or other Securities in such sale (the Existing Stockholders and such other stockholders, collectively, the “Company Stockholders”). Each FS Third-Party Offer shall include an offer to purchase Shares shares of Common Stock or other Securities from the Stockholders Company Stockholders, in the amounts determined in accordance with Subsection 3.3 of this Section 5.4(c)3, at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, the Investor to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party OfferOffer (including all material information available to the Investor relating thereto). If any a Company Stockholder desires to accept the offer contained in the FS Initial Offer Notice, such Company Stockholder shall furnish written notice to FSEP IVthe Investor, within 20 15 days after its receipt of the FS Initial Offer Notice, indicating such Stockholder's ’s irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares Securities such Stockholder agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICE"“Acceptance Notice”). If such a Company Stockholder does not furnish an FS Acceptance Notice to FSEP IV the Investor in accordance with these provisions by the end of such 2015-day period, such Company Stockholder shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares set forth in the FS Acceptance Notice of such Stockholder together with the Shares proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx to the Third Party are referred to collectively as "ALL OFFERED SHARES". Within three days after the date on which the Third Party informs FSEP IV of the total number of Shares which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV shall send written notice (the "FS FINAL NOTICE") to such Stockholder setting forth the number of Shares such Stockholder shall sell to the Third Party as determined in accordance with Section 5.4(c), which number shall not exceed the maximum number specified by such Stockholder in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV to facilitate the sale), such Stockholder shall furnish to FSEP IV (i) a written undertaking to deliver, upon the consummation of the sale of Shares to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares held by such Stockholder which will be transferred pursuant to such FS Third-Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARES") and (ii) a limited power-of-attorney authorizing FSEP IV to transfer the Stockholder Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder shall be required to make representations and warranties in connection with such transfer with respect to its own authority to transfer and its title to the Shares transferred. In any such transaction, such Stockholder will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and the Company to facilitate the transaction.

Third Party Offer. i. Prior to the consummation of any sale of all ----------------- or any portion of the shares of Common Stock held by the Sears Stockholder or FS Shares Stockholder ("Selling Stockholder") to a Third Party pursuant to Section 5.4(a)Party, FSEP IV and/or Xxxxxx Xxxxxxx the Selling Stockholder shall cause each bona fide offer from such Third Party to purchase such FS Shares shares from FSEP IV the Selling Stockholder (an a "FS THIRDThird-PARTY OFFERParty Offer") to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICEInitial Offer Notice") to the other Stockholders. Each FS Third-Party Offer shall include an offer to purchase Shares shares of Common Stock from the Stockholders holding rights under Section 3.1 in the amounts determined in accordance with Subsection 3.3 of this Section 5.4(c)3, at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, the Selling Stockholder to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party OfferOffer (including all material information available to the Selling Stockholder relating thereto). If any a Stockholder desires to accept the offer contained in the FS Initial Offer Notice, such Stockholder shall furnish written notice to FSEP IVthe Selling Stockholder, within 20 days after its receipt of the FS Initial Offer Notice, indicating such Stockholder's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares shares of Common Stock such Stockholder agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICEAcceptance Notice"). If such a Stockholder does not furnish an FS Acceptance Notice to FSEP IV in accordance with these provisions by the end of such 20-day period, such Stockholder shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares set forth in the FS Acceptance Notice of such Stockholder together with the Shares proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx to the Third Party are referred to collectively as "ALL OFFERED SHARES". Within three days after the date on which the Third Party informs FSEP IV of the total number of Shares which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV shall send written notice (the "FS FINAL NOTICE") to such Stockholder setting forth the number of Shares such Stockholder shall sell to the Third Party as determined in accordance with Section 5.4(c), which number shall not exceed the maximum number specified by such Stockholder in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV to facilitate the sale), such Stockholder shall furnish to FSEP IV (i) a written undertaking to deliver, upon the consummation of the sale of Shares to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares held by such Stockholder which will be transferred pursuant to such FS Third-Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARES") and (ii) a limited power-of-attorney authorizing FSEP IV to transfer the Stockholder Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder shall be required to make representations and warranties in connection with such transfer with respect to its own authority to transfer and its title to the Shares transferred. In any such transaction, such Stockholder will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and the Company to facilitate the transaction.the

Third Party Offer. Prior to the consummation of any ----------------- sale of all ----------------- or any portion of the shares of Holding Common Stock held by any of the FS Shares Entities to a Third Party pursuant to Section 5.4(a)Party, FSEP IV and/or Xxxxxx Xxxxxxx such FS Entity shall cause each bona fide offer from such Third Party to purchase such shares from such FS Shares from FSEP IV Entity (an "FS THIRDThird-PARTY OFFERParty Offer") to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICEInitial Offer Notice") to the StockholdersTrust. Each FS Third-Party Offer shall include an offer to purchase Shares shares of Common Stock from the Stockholders Trust in the amounts determined in accordance with Section 5.4(c)3A.3, at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, the FS Entity to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Third- Party Offer. If any Stockholder the Trust desires to accept the offer contained in the FS Initial Offer Notice, such Stockholder the Trust shall furnish written notice to FSEP IVthe FS Entities, within 20 days after its receipt of the FS Initial Offer Notice, indicating such Stockholderthe Trust's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares such Stockholder shares of Common Stock the Trust agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICEAcceptance Notice"). If such Stockholder the Trust does not furnish an FS Acceptance Notice to FSEP IV the FS Entities in accordance with these provisions by the end of such 20-day period, such Stockholder the Trust shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares shares of Common Stock set forth in the FS Acceptance Notice of such Stockholder the Trust together with the Shares shares of Holding Common Stock proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx the FS Entities to the Third Party are referred to collectively as "ALL OFFERED SHARESAll Holding and Company Offered Shares". Within three days after the date on which the Third Party informs FSEP IV the FS Entities of the total number of Shares shares of Holding Common Stock (and Common Stock, in the case of the Trust) which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV the FS Entities shall send written notice (the "FS FINAL NOTICEFinal Notice") to such Stockholder the Trust setting forth the number of Shares such Stockholder shares of Common Stock the Trust shall sell to the Third Party as determined in accordance with Section 5.4(c)3A.3, which number shall not exceed the maximum number specified by such Stockholder the Trust in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV the FS Entities to facilitate the sale), such Stockholder the Trust shall furnish to FSEP IV the FS Entities (i) a written undertaking to deliver, upon the consummation of the sale of Shares Holding Common Stock to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares shares of Common Stock held by such Stockholder the Trust which will be transferred pursuant to such FS Third-Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARESTrust Included Shares") and (ii) a limited power-of-attorney authorizing FSEP IV the FS Entities to transfer the Stockholder Trust Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, the FS Entities and such Stockholder the Trust shall be required to make representations and warranties in connection with such transfer with respect to its own authority to transfer and its title to the Shares shares of Holding Common Stock (or Common Stock, in the case of the Trust) transferred. In any such transaction, such Stockholder transaction Holding will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, the FS Entities and the Company Trust to facilitate the transaction.

Third Party Offer. Prior to the consummation of any sale of all ----------------- or any portion of the shares of Common Stock held by the FS Shares Stockholder to a Third Party pursuant to Section 5.4(a)Party, FSEP IV and/or Xxxxxx Xxxxxxx the FS Stockholder shall cause each bona fide offer from such Third Party to purchase such shares from the FS Shares from FSEP IV Stockholder (an a "FS THIRDThird-PARTY OFFERParty Offer") to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICEInitial Offer Notice") to the Stockholderseach Existing Stockholder. Each FS Third-Party Offer shall include an offer to purchase Shares shares of Common Stock from the Existing Stockholders in the amounts determined in accordance with Subsection 3.3 of this Section 5.4(c)3, at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, the FS Stockholder to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party Offer. If any an Existing Stockholder desires to accept the offer contained in the FS Initial Offer Notice, such Existing Stockholder shall furnish written notice to FSEP IVthe FS Stockholder, within 20 days after its receipt of the FS Initial Offer Notice, indicating such Existing Stockholder's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares shares of Common Stock such Existing Stockholder agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICEAcceptance Notice"). If such an Existing Stockholder does not furnish an FS Acceptance Notice to FSEP IV the FS Stockholder in accordance with these provisions by the end of such 20-day period, such Existing Stockholder shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares shares of Common Stock set forth in the FS Acceptance Notice Notices of such Stockholder the Existing Stockholders together with the Shares shares of Common Stock proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx the FS Stockholder to the Third Party are referred to collectively as "ALL OFFERED SHARESAll Offered Shares". Within three days after the date on which the Third Party informs FSEP IV the FS Stockholder of the total number of Shares shares of Common Stock which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV the FS Stockholder shall send written notice (the "FS FINAL NOTICEFinal Notice") to such Stockholder the participating Existing Stockholders setting forth the number of Shares such shares of Common Stock each Existing Stockholder shall sell to the Third Party as determined in accordance with Subsection 3.3 of this Section 5.4(c)3, which number shall not exceed the maximum number specified by such an Existing Stockholder in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV the FS Stockholder to facilitate the sale), such each participating Existing Stockholder shall furnish to FSEP IV the FS Stockholder (i) a written undertaking to deliver, upon the consummation of the sale of Shares Common Stock to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares shares of Common Stock held by such the Existing Stockholder which will be transferred pursuant to such FS Third-Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARESIncluded Shares") and (ii) a limited power-of-attorney authorizing FSEP IV the FS Stockholder to transfer the Stockholder Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder shall be required to make representations and warranties in connection with such transfer only with respect to its own authority to transfer and its title to the Shares shares of Common Stock transferred. In any such transaction, such Stockholder transaction the Company will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and the Company all Stockholders to facilitate the transaction.

Third Party Offer. Prior to the consummation of any sale of ----------------- all ----------------- or any portion of the shares of Common Stock held by the FS Shares Stockholder to a Third Party pursuant to Section 5.4(a)Party, FSEP IV and/or Xxxxxx Xxxxxxx the FS Stockholder shall cause each bona fide offer from such Third Party to purchase such shares from the FS Shares from FSEP IV Stockholder (an a "FS THIRDThird-PARTY OFFERParty Offer") to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICEInitial Offer Notice") to each of the New Stockholders. Each FS Third-Party Offer shall include an offer to purchase Shares shares of Common Stock from the New Stockholders in the amounts determined in accordance with Subsection 2.3 of this Section 5.4(c)2, at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, the FS Stockholder to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party Offer. If any such New Stockholder desires to accept the offer contained in the FS Initial Offer Notice, such New Stockholder shall furnish written notice to FSEP IVthe FS Stockholder, within 20 days after its receipt of the FS Initial Offer Notice, indicating such New Stockholder's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares shares of Common Stock such New Stockholder agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICEAcceptance Notice"). If such New Stockholder does not furnish an FS Acceptance Notice to FSEP IV the FS Stockholder in accordance with these provisions by the end of such 20-day period, such New Stockholder shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares set forth in the FS Acceptance Notice shares of such Stockholder together with the Shares proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx to the Third Party are referred to collectively as "ALL OFFERED SHARES". Within three days after the date on which the Third Party informs FSEP IV of the total number of Shares which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV shall send written notice (the "FS FINAL NOTICE") to such Stockholder setting forth the number of Shares such Stockholder shall sell to the Third Party as determined in accordance with Section 5.4(c), which number shall not exceed the maximum number specified by such Stockholder in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV to facilitate the sale), such Stockholder shall furnish to FSEP IV (i) a written undertaking to deliver, upon the consummation of the sale of Shares to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares held by such Stockholder which will be transferred pursuant to such FS Third-Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARES") and (ii) a limited power-of-attorney authorizing FSEP IV to transfer the Stockholder Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder shall be required to make representations and warranties in connection with such transfer with respect to its own authority to transfer and its title to the Shares transferred. In any such transaction, such Stockholder will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and the Company to facilitate the transaction.Common Stock set

Third Party Offer. (a) Prior to the consummation of any sale of all ----------------- or any portion of the shares of Common Stock held by the Sears Stockholder or FS Shares Stockholder ("Selling Stockholder") to a Third Party pursuant to Section 5.4(a)Party, FSEP IV and/or Xxxxxx Xxxxxxx the Selling Stockholder shall cause each bona fide offer from such Third Party to purchase such FS Shares shares from FSEP IV the Selling Stockholder (an a "FS THIRDThird-PARTY OFFERParty Offer") to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICEInitial Offer Notice") to the other Stockholders. Each FS Third-Party Offer shall include an offer to purchase Shares shares of Common Stock from the Stockholders holding rights under Section 3.1 in the amounts determined in accordance with Subsection 3.3 of this Section 5.4(c)3, at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, the Selling Stockholder to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party OfferOffer (including all material information available to the Selling Stockholder relating thereto). If any a Stockholder desires to accept the offer contained in the FS Initial Offer Notice, such Stockholder shall furnish written notice to FSEP IVthe Selling Stockholder, within 20 days after its receipt of the FS Initial Offer Notice, indicating such Stockholder's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares shares of Common Stock such Stockholder agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICEAcceptance Notice"). If such a Stockholder does not furnish an FS Acceptance Notice to FSEP IV in accordance with these provisions by the end of such 20-day period, such Stockholder shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares set forth in the FS Acceptance Notice of such Stockholder together with the Shares proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx to the Third Party are referred to collectively as "ALL OFFERED SHARES". Within three days after the date on which the Third Party informs FSEP IV of the total number of Shares which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV shall send written notice (the "FS FINAL NOTICE") to such Stockholder setting forth the number of Shares such Stockholder shall sell to the Third Party as determined in accordance with Section 5.4(c), which number shall not exceed the maximum number specified by such Stockholder in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV to facilitate the sale), such Stockholder shall furnish to FSEP IV (i) a written undertaking to deliver, upon the consummation of the sale of Shares to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares held by such Stockholder which will be transferred pursuant to such FS Third-Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARES") and (ii) a limited power-of-attorney authorizing FSEP IV to transfer the Stockholder Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder shall be required to make representations and warranties in connection with such transfer with respect to its own authority to transfer and its title to the Shares transferred. In any such transaction, such Stockholder will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and the Company to facilitate the transaction.the

Third Party Offer. (a) Prior to the consummation of any sale of all ----------------- or any portion of the shares of Common Stock held by the FS Shares Stockholder to a Third Party pursuant to Section 5.4(a)Party, FSEP IV and/or Xxxxxx Xxxxxxx the FS Stockholder shall cause each bona fide offer from such Third Party to purchase such shares from the FS Shares from FSEP IV Stockholder (an a "FS THIRDThird-PARTY OFFERParty Offer") to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICEInitial Offer Notice") to the other Stockholders. Each FS Third-Party Offer shall include an offer to purchase Shares shares of Common Stock from the Existing Stockholders and the Ripplewood Stockholder, in the amounts determined in accordance with Subsection 3.3 of this Section 5.4(c)3, at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, the FS Stockholder to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party OfferOffer (including all material information available to the FS Stockholder relating thereto). If any a Stockholder desires to accept the offer contained in the FS Initial Offer Notice, such Stockholder shall furnish written notice to FSEP IVthe FS Stockholder, within 20 days after its receipt of the FS Initial Offer Notice, indicating such Stockholder's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares shares of Common Stock such Stockholder agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICEAcceptance Notice"). If such a Stockholder does not furnish an FS Acceptance Notice to FSEP IV the FS Stockholder in accordance with these provisions by the end of such 20-day period, such Stockholder shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares shares of Common Stock set forth in the FS Acceptance Notice Notices of such Stockholder the Stockholders together with the Shares shares of Common Stock proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx the FS Stockholder to the Third Party are referred to collectively as "ALL OFFERED SHARESAll Offered Shares". Within three five days after the date on which the Third Party informs FSEP IV the FS Stockholder of the total number of Shares shares of Common Stock which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV the FS Stockholder shall send written notice (the "FS FINAL NOTICEFinal Notice") to such Stockholder the participating Stockholders setting forth the number of Shares such shares of Common Stock each participating Stockholder shall sell to the Third Party as determined in accordance with Subsection 3.3 of this Section 5.4(c)3, which number shall not exceed the maximum number specified by such a Stockholder in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV to facilitate the sale), such Stockholder shall furnish to FSEP IV (i) a written undertaking to deliver, upon the consummation of the sale of Shares to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares held by such Stockholder which will be transferred pursuant to such FS Third-Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARES") and (ii) a limited power-of-attorney authorizing FSEP IV to transfer the Stockholder Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder shall be required to make representations and warranties in connection with such transfer with respect to its own authority to transfer and its title to the Shares transferred. In any such transaction, such Stockholder will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and the Company to facilitate the transaction.its

Third Party Offer. Prior to the consummation of any sale of ----------------- all ----------------- or any portion of the FS Shares shares of Common Stock held by Holding to a Third Party pursuant to Section 5.4(a)Party, FSEP IV and/or Xxxxxx Xxxxxxx Holding shall cause each bona fide offer from such Third Party to purchase such FS Shares shares from FSEP IV Holding (an a "FS THIRDThird-PARTY OFFERParty Offer") to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICEInitial Offer Notice") to the StockholdersTrust. Each FS Third-Party Offer shall include an offer to purchase Shares shares of Common Stock from the Stockholders Trust in the amounts determined in accordance with Section 5.4(c)3.3, at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, Holding to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party Offer. If any Stockholder the Trust desires to accept the offer contained in the FS Initial Offer Notice, such Stockholder the Trust shall furnish written notice to FSEP IVHolding, within 20 days after its receipt of the FS Initial Offer Notice, indicating such Stockholderthe Trust's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares such Stockholder shares of Common Stock the Trust agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICEAcceptance Notice"). If such Stockholder the Trust does not furnish an FS Acceptance Notice to FSEP IV Holding in accordance with these provisions by the end of such 20-day period, such Stockholder the Trust shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares shares of Common Stock set forth in the FS Acceptance Notice of such Stockholder the Trust together with the Shares shares of Common Stock proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx Holding to the Third Party are referred to collectively as "ALL OFFERED SHARESAll Offered Shares". Within three days after the date on which the Third Party informs FSEP IV Holding of the total number of Shares shares of Common Stock which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV Holding shall send written notice (the "FS FINAL NOTICEFinal Notice") to such Stockholder the Trust setting forth the number of Shares such Stockholder shares of Common Stock the Trust shall sell to the Third Party as determined in accordance with Section 5.4(c)3.3, which number shall not exceed the maximum number specified by such Stockholder the Trust in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV Holding to facilitate the sale), such Stockholder the Trust shall furnish to FSEP IV Holding (i) a written undertaking to deliver, upon the consummation of the sale of Shares Common Stock to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares shares of Common Stock held by such Stockholder the Trust which will be transferred pursuant to such FS Third-Third- Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARESIncluded Shares") and (ii) a limited power-of-attorney authorizing FSEP IV Holding to transfer the Stockholder Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder Shareholder shall be required to make representations and warranties in connection with such transfer with respect to its own authority to transfer and its title to the Shares shares of Common Stock transferred. In any such transaction, such Stockholder transaction the Company will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and the Company all Shareholders to facilitate the transaction.

Third Party Offer. Prior If a third party not affiliated with either Owner hereto ("Potential Buyer") makes a bona fide written offer to the consummation Owners to buy the Company, and one Owner ("Disagreeing Owner") elects not to accept that offer, and that offer is more than ninety percent (90%) of any the Net Book Value of the Company, then the Agreeing Owner may notify in writing the Disagreeing Owner that the Agreeing Owner is invoking the provisions of this Section 7.2.2 and either (a) the Disagreeing Owner shall be required to sell along with the Agreeing Owner their Percentage Interests in the Company. Such sale of all ----------------- or any portion of the FS Shares to a Third Party pursuant to Section 5.4(a), FSEP IV and/or Xxxxxx Xxxxxxx Company shall cause each bona fide offer from such Third Party to purchase such FS Shares from FSEP IV (an "FS THIRD-PARTY OFFER") to be reduced to writing and shall send written notice of such FS Third-Party Offer (the "FS INITIAL OFFER NOTICE") to the Stockholders. Each FS Third-Party Offer shall include an offer to purchase Shares from the Stockholders in the amounts determined in accordance with Section 5.4(c), at the same time, at the same price and on the same terms as the sale by FSEP IV and, if applicable, Xxxxxx Xxxxxxx, to the Third Party, and according to the terms and conditions of this Agreement. The FS Initial Offer Notice shall be accompanied by a true copy of the FS Third-Party Offer. If any Stockholder desires to accept the offer contained in the FS Initial Offer NoticePotential Buyer's offer, such Stockholder shall furnish written notice to FSEP IV, within 20 days after its receipt of or (b) the FS Initial Offer Notice, indicating such Stockholder's irrevocable acceptance of the offer included in the FS Initial Offer Notice and setting forth the maximum number of Shares such Stockholder agrees to sell to the Third Party (the "FS ACCEPTANCE NOTICE"). If such Stockholder does not furnish an FS Acceptance Notice to FSEP IV in accordance with these provisions by the end of such 20-day period, such Stockholder shall be deemed to have irrevocably rejected the offer contained in the FS Initial Offer Notice. All Shares set forth in the FS Acceptance Notice of such Stockholder together with the Shares proposed to be sold by FSEP IV and, if applicable, Xxxxxx Xxxxxxx to the Third Party are referred to collectively as "ALL OFFERED SHARES". Within three days after the date on which the Third Party informs FSEP IV of the total number of Shares which such Third Party has agreed to purchase in accordance with the terms specified in the FS Initial Offer Notice, FSEP IV shall send written notice (the "FS FINAL NOTICE") to such Stockholder setting forth the number of Shares such Stockholder shall sell to the Third Party as determined in accordance with Section 5.4(c), which number shall not exceed the maximum number specified by such Stockholder in its FS Acceptance Notice. Within five days after the date of the FS Final Notice (or such shorter period as may reasonably be requested by FSEP IV to facilitate the sale), such Stockholder shall furnish to FSEP IV (i) a written undertaking to deliver, upon the consummation of the sale of Shares to the Third Party as indicated in the FS Final Notice, the certificates representing the Shares held by such Stockholder which will be transferred pursuant to such FS Third-Party Offer (such shares shall be referred to herein as the "STOCKHOLDER INCLUDED SHARES") and (ii) a limited power-of-attorney authorizing FSEP IV to transfer the Stockholder Included Shares pursuant to the terms of such FS Third-Party Offer. Each of FSEP IV, Xxxxxx Xxxxxxx, if applicable, and such Stockholder Disagreeing Owner shall be required to make representations buy the Agreeing Owner's Percentage Interest in the Company at the Potential Buyer's offer price multiplied by the Percentage Interest of the Agreeing Owner in the Company, or (c) if the Potential Buyer agrees to buy only the Agreeing Owner's Percentage Interest and warranties in connection reaches an agreement with such transfer with respect the Disagreeing Owner on terms to operate the Company, then the Disagreeing Owner must give its own authority to transfer and its title written consent to the Shares transferred. In any such transaction, such Stockholder will cooperate with FSEP IV, Xxxxxx Xxxxxxx, if applicable, and sale of the Agreeing Owner's Percentage Interest in the Company to facilitate the transactionPotential Buyer. In the event that the offer is less than ninety percent (90%) of the Net Book Value of the Company, there will be no obligation on the part of the Disagreeing Owner to comply with this Section 7.2.2. Each offer required to be made pursuant to this Section 7.2.2 shall be made by a written notice, and which shall set forth the name or names of the proposed purchaser, the payment of the purchase price which shall be all cash and the scheduled date of consummation of such proposed sale. A copy of the written offer from any proposed third party purchasers shall be attached to each notice hereunder.