Third Party Offers. In the event none of the Non-Transferring Shareholders exercise their respective options granted hereunder to purchase all of the shares owned by the Transferring Shareholder, after having been given notice, then the Transferring Shareholder shall have the right to sell all of the shares to the prospective purchase set forth within the Transfer Notice (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required to be met by the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring Shareholders. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer shall be accepted by the Transferring Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effect.
Appears in 4 contracts
Samples: Shareholders Management Agreement (EnterConnect Inc), Shareholders Management Agreement (EnterConnect Inc), Shareholders’ Management Agreement (EnterConnect Inc)
Third Party Offers. In (a) If the event none Company becomes aware of the Non-Transferring Shareholders exercise their respective options granted hereunder a bona fide offer to purchase all Shares (whether involving a formal offer by way of the shares owned an offer document, an invitation to join a transaction to be evidenced by the Transferring Shareholder, after having been given notice, then the Transferring Shareholder shall have the right to sell all of the shares a sale and purchase agreement or otherwise) is made to the prospective purchase set forth within the Transfer Notice Shareholders of more than (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, i) 50% (fifty per cent) of the Shares then owned by the Transferring Shareholder or (the “Third Party Offer”ii) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c50% (fifty per cent) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required to be met by the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring Shareholders. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer shall be accepted by the Transferring Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right , the Company shall:
(i) immediately upon becoming aware of first refusalthe offer, but only on give notice of the exact offer to the Warrantholder:
(1) specifying the number of shares proposed to be sold;
(2) naming the potential buyer;
(3) specifying the price and terms of such proposed offer; and make commercially reasonable efforts to ensure that the Third Party OfferWarrantholder is treated as a Shareholder as if it had exercised the Warrants then outstanding and exercisable.
(b) For the avoidance of doubt, if any consideration is receivable by any Shareholders pursuant to the sale referred to in paragraph (a) above, the Company shall use commercially reasonable efforts to procure that the Warrantholder receives the same consideration it would have been entitled to receive had it been the shareholder of the Warrant Shares following an exercise of those Warrants, after deducting the Strike Price in respect of those Warrant Shares. The Third Party shall execute and promptly deliver If the Warrantholder is to each party heretoexercise the Warrants in order to sell such Warrant Shares in such transaction, the exercise will be effective immediately prior to the consummation of the transaction, and in no event earlier than twenty-four hours prior to the Corporation, at effective time of the closing of such transaction, for subsequent sale to a sale of Shares known purchaser. The Company agrees to cooperate with the Third Party, an agreement acknowledging Warrantholder and use its commercially reasonable best efforts to ensure that the Shares it has purchased are Warrant exercise occurs within these parameters and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed violate any statutory limitations or regulations to which the Transferring Shareholder as a party to this Agreement, then such transfer shall Warranholder may be of no force and effectsubject regarding shareholding or warrant exercise.
Appears in 2 contracts
Samples: Warrant Agreement (Spire Global, Inc.), Warrant Agreement (Spire Global, Inc.)
Third Party Offers. In If, prior to the tenth anniversary of the Effective Date, KMOC becomes the subject of a Third Party Offer that is (a) approved by a majority of the KMOC Board and (b) supported by the holders of a majority of the KMOC Voting Securities (i) in the event none of a Third Party Offer, the consummation of which does not require action by the holders of the Non-Transferring Shareholders exercise their respective options granted hereunder KMOC Voting Securities, that have taken a position on such transaction, other than the Waldo Entities, or (ii) in the event of a Third Party Offer, the consummation of which requires action of the holders of KMOC Voting Securities, whether at a meeting or by written consent, that have voted in favor of such Third Party Offer, other than the Waldo Entities, KMOC shall deliver a written notice to purchase Waldo, briefly describing the material terms of such Third Party Offer, and Waldo shall, within ten business days after receipt of such notice, either (x) offer to acquire all or substantially all of the shares owned assets of KMOC or the Other KMOC Shares, as the case may be, on terms at least as favorable to the Other KMOC Holders as those contemplated by such Third Party Offer or (y) confirm in writing that it will support, and at the Transferring Shareholderappropriate time support, after having been given noticesuch Third Party Offer, then including by voting and causing each of the Transferring Shareholder shall have Waldo Entities to vote all Shares Beneficially Owned by such Waldo Entity eligible to vote thereon in favor of such Third Party Offer or, if applicable, tendering or selling and causing each of the right Waldo Entities to tender or sell all of the shares Shares Beneficially Owned by it to the prospective purchase set forth within Person making such Third Party Offer. For purposes of (b)(i) of the Transfer Notice (the “Third Party”). The Transferring Shareholderforegoing sentence of this Section 2.2, who received and is willing in order to accept an arms-length, bona fide, written offer from determine whether a Third Party to purchase allOffer is supported by other holders of KMOC Voting Securities, but not less than allKMOC may use any reasonable method, taking into account confidentiality concerns, including engaging the services of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholdersa proxy solicitor or similar firm. The terms notice referred to in the first sentence of this Section 2.2 shall be delivered promptly after the approval of the Third Party Offer required to be met by the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably KMOC Board and readily performable the determination of the support by the Non-Transferring Shareholders. In holders of a majority of the event that KMOC Voting Securities who have taken a position on such transaction or the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer shall be accepted approval by the Transferring Shareholder, if at all, within thirty (30) days holders of a majority of the expiration KMOC Voting Securities that have voted in favor of the Shareholders’ right of first refusal, but only on the exact terms of the Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if as the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effectcase may be.
Appears in 2 contracts
Samples: Investment Agreement (Khanty Mansiysk Oil Corp), Investment Agreement (Khanty Mansiysk Oil Corp)
Third Party Offers. In (a) Newco shall promptly provide ------------------ to Sprint written notice (the event none "Offer Notice") of its receipt of an Offer and, in reasonable detail, the proposed terms thereof. Upon receipt of such Offer, the Board of Directors shall determine that:
(i) such Offer is in the best interests of Newco's stockholders and that it intends to recommend such Offer to the stockholders (a "Recommended Third-Party Offer");
(ii) such Offer is not in the best interests of Newco's stockholders and that it intends not to recommend such Offer to the stockholders or no position is taken with respect thereto under Rule 14e-2 of the Exchange Act within 10 business days of the Board's receipt thereof (a "Non-Transferring Shareholders exercise their respective options granted hereunder Recommended Third-Party Offer" and, together with a Recommended Third-Party Offer, a "Third- Party Offer"); or
(iii) insufficient information exists on which to purchase all base any such recommendation, in which event the Board may take such action as it deems necessary or advisable to develop such additional information; provided, that, -------- ---- if upon developing such additional information, the Board decides to recommend or not to recommend such Offer to the stockholders, then it shall promptly notify Sprint of such decision and, at such time, the Offer shall be deemed a Recommended Third-Party Offer or a Non-Recommended Third-Party Offer, as appropriate.
(b) For a period of ten days following the giving of the shares owned by the Transferring ShareholderOffer Notice, after having been given notice, then the Transferring Shareholder shall have the right to sell all of the shares Newco may not enter into a definitive agreement with respect to the prospective purchase set forth within Offer. Upon receipt of such Offer Notice, Sprint shall be released from its obligations under Section 4.01 insofar as necessary to permit Sprint, subject to the Transfer Notice (the “Third Party”)terms and conditions of this Agreement and if an Intervening Offer is not then outstanding, to make, pursue and consummate a Sprint Offer. The Transferring ShareholderHowever, who received and is willing Newco shall not be obligated to accept an arms-length, deem a bona fide, written offer from any Person other than an Affiliated Equity Holder to effect a Third Business Combination to be an Offer and to provide the Offer Notice required by Section 4.03(a) until the earlier of (i) the date on which Newco determines that such offer meets the requirements of an Offer and that Newco intends to pursue such Offer with the objective of having it become a Recommended Third-Party Offer, or (ii) ten days after the date Newco receives such offer, unless previously rejected by Newco.
(c) In the case of an Offer that is a Recommended Third-Party Offer, Sprint shall have the option to purchase allmake a Qualified Offer, but and Newco shall not less than alladopt any takeover defenses (unless amended or waived to permit Sprint to make a Qualified Offer), enter into any agreement or take any other action if such action would, in either case, materially impair Sprint's ability to make and consummate a Qualified Offer or materially increase Sprint's costs of consummating such Qualified Offer; provided, however, that, notwithstanding the -------- ------- foregoing, Newco shall be permitted to enter into a definitive agreement with respect to a Recommended Third-Party Offer that provides for a termination fee not to exceed 3% of the Shares then consideration to be received per share of Newco Common Stock multiplied by the number of shares of Newco Common Stock outstanding on a Fully-Diluted Basis (less the number of shares beneficially owned by the Transferring Shareholder offering party), plus customary fees and expenses, except that the definitive agreement with respect to such Recommended Third-Party Offer shall provide that such fee shall not be payable by Sprint if it makes a Qualified Offer within 72 hours of the first public announcement of such Recommended Third-Party Offer (provided, that, there are at least two business days within such period). In --------- ---- the “Third case of an Offer that is a Non-Recommended Third-Party Offer”) , Sprint shall have the option to make a Qualified Offer, but only if the Board of Directors of Sprint reasonably determines in good faith upon consultation with independent legal counsel and its outside financial advisors that the conditions to the Non- Recommended Third-Party Offer are reasonably likely to be satisfied and the offer consummated. If Sprint has the option to make a Qualified Offer and does so more than five days prior to the date of a stockholders meeting held to consider a Third-Party Offer or an Intervening Offer, the Board of Directors shall, notwithstanding that if an Intervening Offer is not then outstanding, (i) support the Non-Transferring Shareholders failed Qualified Offer by approving and recommending it to exercise their options under Paragraphs 4(cNewco's stockholders and (ii) hereof, grant successive irrevocable non-assignable rights of first refusal cause Newco to buy his shares take all steps reasonable and necessary to facilitate the Non-Transferring Shareholders. The terms consummation of the Third Qualified Offer.
(i) At such time as a Third-Party Offer required made subsequent to a Qualified Offer shall constitute an Intervening Offer, Newco's obligations to support and facilitate a Qualified Offer as set forth in Section 4.03(c) above shall terminate and Newco shall be met by free to consider and act upon such Intervening Offer. Notwithstanding the Non-Transferring Shareholders under this paragraph foregoing, Sprint shall not include be entitled, at any non-monetary terms not reasonably and readily performable by time prior to consummation of the Non-Transferring ShareholdersIntervening Offer, to make another Qualified Offer. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunderSprint makes such Qualified Offer, the Third most recent Third-Party Offer shall be accepted by cease to constitute an Intervening Offer.
(ii) If a Recommended Third-Party Offer or an Intervening Offer, as the Transferring Shareholdercase may be, if at allis undertaken, within thirty (30) days in whole or in part, in the form of the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporationa tender offer, at the closing consummation of such tender offer, the offeror shall have an option, exercisable for a period of 20 days following the consummation of such tender offer, to purchase from any Affiliated Equity Holder, at the tender offer price, the Specified Number of Equity Securities less the number of Equity Securities that have already been tendered by the Affiliated Equity Holders.
(iii) If, in the event of a sale Recommended Third-Party Offer or an Intervening Offer, as the case may be, such offer, a Business Combination underlying the such offer or any related matter that must be approved by the stockholders of Shares Newco in order for the offer to be effectuated is brought before the stockholders of Newco for their consideration and approval, Sprint and Sprint L.P. shall be obligated, in the event a Qualified Offer has not been made within five days prior to the Third Partydate of the stockholders' meeting, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing cast (or to cause to be personally bound hereby; and upon such closing cast by their Affiliated Equity Holders) in favor of the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Recommended Third-Party Offer or the Intervening Offer, as applicable, the Business Combination or any such related matter such number of votes as is equal to the Specified Number of Equity Securities, provided, that, such Business Combination -------- ---- does not accepted by the Transferring Shareholder within thirty constitute a Discriminatory Transaction.
(30e) days on the exact terms None of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer Affiliated Equity Holders shall be entitled to exercise rights of no force and effectappraisal under Section 262 of the Delaware General Corporation Law (or any successor thereto) as to any of the Equity Securities owned by them in respect of any Business Combination effected in connection with a Recommended Third-Party Offer or an Intervening Offer.
Appears in 2 contracts
Samples: Governance Agreement (Earthlink Network Inc), Governance Agreement (Sprint Corp)
Third Party Offers. In the event none of the Non-Transferring Shareholders exercise their respective options granted hereunder to purchase all of the shares owned by the Transferring Shareholder, after having been given notice, then the Transferring Shareholder shall have the right to sell all of the shares to the prospective purchase set forth within the Transfer Notice (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”a) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required to be met by the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring Shareholders. In the event that Hexcel becomes the Nonsubject of a Third Party Offer that is made after the third anniversary of the Closing and that is approved by two-Transferring Shareholders do not exercise their respective rights thirds of first refusal hereunderthe Independent Directors, promptly after such approval, Hexcel shall deliver a written notice to Ciba, briefly describing the material terms of such Third Party Offer. Ciba shall, within 10 business days after receipt of such notice, either (i) offer to acquire the Other Shares on terms at least as favorable to the Other Holders as those contemplated by such Third Party Offer (in which event Hexcel shall endorse such offer by Ciba rather than such Third Party Offer; provided, however, that if Hexcel becomes the subject of another Third Party Offer that provides for greater currently realizable value to Hexcel's stockholders (including Ciba and the Ciba Entities) than such previously proposed Third Party Offer, Hexcel shall be free to pursue such newly proposed Third Party Offer; and provided, further, that such newly proposed Third Party Offer shall be accepted subject to Ciba's rights pursuant to this Section 3.03(a)(i) and obligations pursuant to Section 3.03(a)(ii)) or (ii) confirm in writing that it will support, and at the appropriate time Ciba shall actually support, such Third Party Offer (or an alternative Third Party Offer providing greater currently realizable value to all Other Holders) by the Transferring Shareholdervoting and causing each Ciba Entity to vote all its Voting Securities eligible to vote thereon in favor of such Third Party Offer or, if at allapplicable, within thirty (30) days of tendering or selling and causing each such Ciba Entity to tender or sell all its Voting Securities to the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the Person making such Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. .
(b) In the event that Hexcel becomes the subject of a Third Party Offer, neither Ciba nor any of the Ciba Entities may support such Third Party Offer, vote in favor of such Third Party Offer or tender or sell its Voting Securities to the Person making such Third Party Offer unless such Third Party Offer is not accepted approved by the Transferring Shareholder within thirty (30x) days on the exact terms a majority of the Third Party OfferIndependent Directors acting solely in the interest of the Other Holders or (y) a majority in interest of the Other Holders in a Stockholder Vote solicited pursuant to a proxy statement containing the information required by Schedule 14A under the Exchange Act (it being understood that the Independent Directors shall, or consistent with their fiduciary duties, be free to include in such proxy statement, if applicable, the Third Party does not succeed the Transferring Shareholder as a party reasons underlying any failure by them to this Agreement, then such transfer shall be of no force and effect.approve such
Appears in 2 contracts
Samples: Governance Agreement (Ciba Geigy LTD), Governance Agreement (Ciba Geigy Corp)
Third Party Offers. In the event none of the Non-Transferring Shareholders exercise their respective options granted hereunder (a) If one or more Members (collectively, "Offering Member") who receives a bona fide written offer ("Third Party Offer") from a purchaser, to purchase the Interest held by such Member ("Offered Interest") may sell such Interest to such purchaser in accordance with this Section 8.4.
(b) Prior to selling the Offered Interest to such purchaser, the Offering Member shall first give written notice ("Sale Notice") to the Company and all of the shares owned by the Transferring Shareholder, after having been given notice, then the Transferring Shareholder shall have the right to sell all of the shares to the prospective purchase set forth within the Transfer Notice other Members (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”"Other Members") shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required to be met by Offer, specifying the Non-Transferring Shareholders under this paragraph shall not include any non-monetary purchaser, the price for the Offered Interest (the "Third Party Price") and the payment terms not reasonably and readily performable by of the Non-Transferring Shareholdersproposed sale (the "Third Party Payment Terms"). In addition, the event that the Non-Transferring Shareholders do not exercise their respective rights Sale Notice shall be accompanied by a copy of first refusal hereunder, the Third Party Offer Offer. For a period of sixty (60) days following receipt of the Sale Notice ("First Option Period"), the Company will have the exclusive right and option to purchase the entire Offered Interest at either (i) the Third Party Price and on the Third Party Payment Terms or (ii) the Contract Price (as defined in Section 8.9) and on the Contract Payment Terms (as defined in Section 8.10), as elected by the Company. The Company shall exercise such option by notifying the Offering Member and the Other Members in writing of such exercise within the First Option Period. Such notice shall specify whether the Company will purchase the Offered Interest at the Third Party Price and on the Third Party Payment Terms, or at the Contract Price and on the Contract Payment Terms. The decision regarding whether or not the Company will purchase the Offered Interest shall be accepted made by the Transferring ShareholderOther Members of the Company, if without the Offering Member participating in said decision.
(c) If the option to purchase the Offered Interest is not exercised by the Company pursuant to Section 8.4(b) as to the entire Offered Interest within the First Option Period, then the Other Members shall have the exclusive right and option for a period of ten (10) days after the expiration of the First Option Period ("Second Option Period"), in their own behalf and exercisable in the same manner as the Company, to purchase the entire Offered Interest. Such option shall be exercised by the Other Members in proportion to their Percentage Interests or in such other proportion as they may agree on in writing, by written notice of such exercise to the Offering Member within the Second Option Period. If such option is not exercised by all of the Other Members as to the entire Offered Interest within the Second Option Period, then the Other Members who have elected to exercise their option as set forth in the immediately preceding sentence (the "Electing Members") shall have the further exclusive right and option for a period of five (5) days following the expiration of the Second Option Period ("Third Option Period"), in their own behalf and exercisable in the same manner as the Company, to purchase the entire Offered Interest. Such option shall be exercised by the Electing Members in proportion to their Percentage Interests, or in such other proportion as they may agree on in writing, by written notice of such exercise to the Offering Member within the Third Option Period. If one or more Members purchase the Offering Member's Interest, such Members shall acquire the same rights in and to such Interest as the proposed purchaser would have acquired.
(d) If none of the options referred to in Sections 8.4(b) and 8.4(c) is exercised by the Company or the Other Members as to the entire Offered Interest within the applicable option period, then the entire Offered Interest may be sold by the Offering Member to the proposed purchaser specified in the Sale Notice at all, any time within thirty (30) days of after the expiration of the Shareholders’ right last of first refusalsuch option periods, but only on the exact terms of at the Third Party OfferPrice and on the Third Party Payment Terms. The Third Party shall execute and promptly deliver to each party hereto, and Offered Interest which is sold to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and proposed purchaser shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon all of the provisions of the Agreement, including without limitation the restrictions on Transfers of such closing Interests. If the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer Offered Interest is not accepted sold by the Transferring Shareholder within thirty (30) days on Offering Member to the exact proposed purchaser in accordance with this Section 8.4(d), or if there is a change in any of the terms of the Third Party Offer, or if the Third Party does Offered Interest may not succeed be sold to the Transferring Shareholder proposed purchaser unless the Offering Member again fully complies with the provisions of Sections 8.4(b) and 8.4(c). No such Transferee shall have the right to become a Member unless and until the Members agree to admit such Transferee as an Additional Member by a party to this Agreement, then such transfer shall be of no force and effectUnanimous Vote.
Appears in 2 contracts
Samples: Operating Agreement, Limited Liability Company Operating Agreement
Third Party Offers. In the event none of the Non-Transferring Shareholders exercise their respective options granted hereunder to purchase all of the shares owned by the Transferring Shareholder, after having been given notice, then the Transferring Shareholder shall have the right to sell all of the shares to the prospective purchase set forth within the Transfer Notice (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”a) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required to be met by the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring Shareholders. In the event that Hexcel becomes the Nonsubject of a Third Party Offer that is made after the third anniversary of the Closing and that is approved by two-Transferring Shareholders do not exercise their respective rights thirds of first refusal hereunderthe Independent Directors, promptly after such approval, Hexcel shall deliver a written notice to Ciba, briefly describing the material terms of such Third Party Offer. Ciba shall, within 10 business days after receipt of such notice, either (i) offer to acquire the Other Shares on terms at least as favorable to the Other Holders as those contemplated by such Third Party Offer (in which event Hexcel shall endorse such offer by Ciba rather than such Third Party Offer; provided, however, that if Hexcel becomes the subject of another Third Party Offer that provides for greater currently realizable value to Hexcel's stockholders (including Ciba and the Ciba Entities) than such previously proposed Third Party Offer, Hexcel shall be free to pursue such newly proposed Third Party Offer; and provided, further, that such newly proposed Third Party Offer shall be accepted subject to Ciba's rights pursuant to this Section 3.03(a)(i) and obligations pursuant to Section 3.03(a)(ii)) or (ii) confirm in writing that it will support, and at the appropriate time Ciba shall actually support, such Third Party Offer (or an alternative Third Party Offer providing greater currently realizable value to all Other Holders) by the Transferring Shareholdervoting and causing each Ciba Entity to vote all its Voting Securities eligible to vote thereon in favor of such Third Party Offer or, if at allapplicable, within thirty (30) days of tendering or selling and causing each such Ciba Entity to tender or sell all its Voting Securities to the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the Person making such Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. .
(b) In the event that Hexcel becomes the subject of a Third Party Offer, neither Ciba nor any of the Ciba Entities may support such Third Party Offer, vote in favor of such Third Party Offer or tender or sell its Voting Securities to the Person making such Third Party Offer unless such Third Party Offer is not accepted approved by (x) a majority of the Independent Directors acting solely in the interest of the Other Holders or (y) a majority in interest of the Other Holders in a Stockholder Vote solicited pursuant to a proxy statement containing the information required by Schedule 14A under the Exchange Act (it being understood that the Independent Directors shall, consistent with their fiduciary duties, be free to include in such proxy statement, if applicable, the reasons underlying any failure by them to approve such Third Party Offer by the Transferring Shareholder within thirty requisite vote, including whether a fairness opinion was sought and any opinions or recommendations expressed in connection therewith).
(30c) days on Notwithstanding Section 3.03(b), if Ciba has exercised the exact terms right to require Hexcel to solicit a Buyout Transaction pursuant to Section 5.01, Ciba and the Ciba Entities may vote in favor of or tender or sell their Voting Securities pursuant to any Third Party Offer made as a result of or during such solicitation so long as such Third Party Offer offers the same consideration to all Hexcel stockholders. Unless Hexcel shall have accepted another Third Party Offer providing at least equivalent value to all Hexcel stockholders, Hexcel shall not take any action to interfere with Ciba's right to vote in favor of or tender into such a Third Party Offer (it being understood that Hexcel shall remain free to pursue alternative Third Party Offers that provide for at least equivalent currently realizable value to Hexcel's stockholders (including Ciba and the Ciba Entities) as such previously proposed Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effect).
Appears in 1 contract
Third Party Offers. In If, during the event none of the Non-Transferring Shareholders exercise their respective options granted hereunder Term, City receives a bona fide offer to purchase all the ROFR Parcel from a prospective purchaser other than SBH REG and City desires (or is bound by operation of the shares owned by the Transferring Shareholder, after having been given notice, then the Transferring Shareholder shall have the right law) to sell all of the shares to the accept such prospective purchase set forth within the Transfer Notice purchaser's offer (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “"Third Party Offer”) shall"), notwithstanding that City shall give SBH REG written notice (the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the "Third Party Offer required to be met by Notice") which shall state the Non-Transferring Shareholders under this paragraph shall not include any non-monetary purchase price, terms not reasonably of payment and readily performable by the Non-Transferring Shareholders. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer shall be accepted by the Transferring Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact other terms and conditions of the Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event If the Third Party Offer provides for City to receive from the offer real or personal property other than cash consideration in exchange for the ROFR Parcel (the "Non‐Cash Consideration"), the Third Party Offer Notice shall include a reasonable estimate of the fair market value of the Non‐Cash Consideration that the City is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms to receive, measured in dollars. Upon SBH REG 's receipt of the Third Party OfferOffer Notice, or if the rights and obligations of City and SBH REG shall be determined as follows:
(A) SBH REG shall have twenty (20) business days from receipt of the Third Party does Offer Notice within which to elect in writing whether to purchase the ROFR Parcel at the price and upon the other terms and conditions contained in the Third Party Offer. Where SBH REG has the right of first refusal pursuant to Section 25.1 and the Third Party Offer calls for City to receive non‐cash consideration (other than purchase money financing, as to which SBH REG would match the financing terms) SBH REG would, at City's option, either pay the cash equivalent of any non‐cash consideration stated therein or cooperate with City in acquiring comparable non‐cash consideration, but with SBH REG assuming all cost, risk and expense of such acquisition. Failure of SBH REG to elect to purchase pursuant to this right of first refusal shall permit City to accept the Third Party Offer and consummate a sale thereunder, provided such sale is not succeed made at a price or on terms and conditions in any material respect more favorable to the Transferring Shareholder purchaser than those contained in the Third Party Offer Notice. Any other sale, transfer or other conveyance of the ROFR Parcel by City to a third party (except as specifically provided below) shall be null and void.
(B) If SBH REG elects to purchase the ROFR Parcel, the Parties shall consummate the sale and purchase of the ROFR Parcel on the terms and conditions of the Third Party Offer Notice and otherwise according the industry customs and practices of Sacramento County. The Parties may elect to enter into a formal purchase and sale agreement, but this not required. Without limiting SBH REG's rights and remedies hereunder, failure of City to consummate the sale of the ROFR Parcel to SBH REG shall not entitle City to sell the ROFR Parcel to a third party except as otherwise provided herein.
(C) Prior to the close of escrow for a sale of the ROFR Parcel pursuant to a Third Party Offer (other than to SBH REG), SBH REG shall be furnished with copies of the final sale documentation to verify that the sale is being made in compliance with the provisions of this Section. After making such verification, SBH REG will within five (5) business days after receipt of such sale documentation deposit into the escrow a quitclaim deed, the delivery of which shall be conditioned only upon the closing of the sale in accordance with the verified final sale documentation. The quitclaim deed referred to in the preceding sentence shall be solely for the purpose of terminating any rights SBH REG has under this Agreement, then and shall so state on the face thereof.
(D) SBH REG's right to receive a Third Party Offer Notice, as well as SBH REG's right of first refusal set forth above, shall continue until expiration of the Term or until such transfer time as City sells all of the ROFR Parcel to SBH REG or pursuant to a Third Party Offer as contemplated by, and in accordance with, this Agreement. Upon SBH REG's request, City, at SBH REG's cost and expense, shall be record a memorandum of no force and effectSBH REG's rights under this Section with the Sacramento County Recorder's Office.
Appears in 1 contract
Samples: Property Conveyance Agreement
Third Party Offers. In (a) Any Shareholder (a "Transferring Shareholder") may at any time Transfer any of its Shares pursuant to a bona fide offer (a "Third-Party Offer") in writing signed by the event none person or entity to whom the Transfer is to be made, which Third-Party Offer shall identify the offeror and fully set forth the terms and conditions of such Third-Party Offer; provided, however, that such Transferring Shareholder first shall offer such Shares in writing (the "Transferring Shareholder's Offer") to the other Shareholders of the NonCompany (collectively, the "Remaining Shareholders") and then to the Company, in that order, for the same price and on the same terms as were set forth in the Third-Party Offer. The right to receive the Transferring Shareholder's Offer may be waived in writing by any of the Remaining Shareholders exercise or by the Company. The Transferring Shareholder's Offer shall be accompanied by a copy of the Third Party Offer and shall be irrevocable and remain in effect for a 30-day period, unless sooner terminated by the agreement of the Remaining Shareholders and the Company or as otherwise provided in this Agreement.
(b) Unless the Transferring Shareholder's Offer is sooner rejected by the Remaining Shareholders, the Remaining Shareholders shall have the exclusive right, but not the obligation, to purchase the Shares offered on a pro rata basis in accordance with their respective options granted hereunder ownership interests in the Company, by accepting the Transferring Shareholder's Offer within a 30-day period (the "Remaining Shareholders' Option Period") beginning on the date of the Transferring Shareholder's offer. The Remaining Shareholders may accept the Transferring Shareholder's Offer by sending a written notice to purchase the Transferring Shareholder on or before the end of the Remaining Shareholders' Option Period, specifying the number of Shares which such Remaining Shareholder proposes to purchase. If any Remaining Shareholder elects not to exercise such option with respect to any or all of the shares owned Transferring Shareholder's Shares which it is entitled to purchase, each of the other Remaining Shareholders may elect to purchase such Shares in the manner provided in this subsection (b). Failure by any Remaining Shareholder to give such notice within such time period shall be deemed an election by it not to exercise its option.
(c) If the Remaining Shareholders fail to exercise such option with respect to any or all of the Shares proposed to be transferred, the Company shall thereupon have the option, but not the obligation, to purchase, for the same price and on the same terms as set forth in the Third Party Offer, that portion of the Transferring Shareholder's Shares as to which the Remaining Shareholders have not exercised their option. Within 30 days after the Remaining Shareholders' notice or within 60 days after the Transferring Shareholder's Offer, after having been given noticethe Company shall give written notice to the Transferring Shareholder and the Remaining Shareholders stating whether or not it elects to exercise its option and the number of Shares, if any, which it elects to purchase.
(d) If the Remaining Shareholders and the Company reject or fail to timely accept the Transferring Shareholder's Offer within the time periods set forth above, then subject to Section 3.4(a), the Transferring Shareholder may transfer its Shares during the 30-day period following the earlier of the rejection of the Transferring Shareholder's Offer by the Remaining Shareholders and the Company or the expiration of the Transferring Shareholder's Offer without acceptance by any offerees, but only strictly in accordance with the terms and conditions of the Third-Party Offer and only to the person or entity which made the Third-Party Offer. If the Transferring Shareholder does not Transfer its Shares during such 30-day period in accordance with this Section 3.5, then the Transferring Shareholder shall have must re-offer its Shares pursuant to this Section 3.5 in the right to sell all same manner as upon its initial receipt of the shares Third-Party Offer.
(e) Notwithstanding any other provision in this Agreement to the prospective purchase set forth within the Transfer Notice (the “Third Party”). The Transferring Shareholdercontrary, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required to be met by the Non-Transferring Shareholders under this paragraph Section 3.5 shall not include apply to any non-monetary terms not reasonably and readily performable Transfer of Shares made by the Non-Transferring Shareholders. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer shall be accepted by the Transferring a Shareholder due to such Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at the closing 's receipt of a sale Call Notice from the Company because of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effectSuitability Problem.
Appears in 1 contract
Samples: Shareholders Agreement (Windsor Woodmont Black Hawk Resort Corp)
Third Party Offers. In EpiCept hereby grants to Durect, and Durect hereby accepts the event none following rights of first refusal: EpiCept License (final)
(a) If, at any time during the term of this Agreement, EpiCept considers and/or receives an offer by any third party seeking rights under the EpiCept Licensed Patents and/or Patents under the EpiCept Improvements to develop, manufacture, use or sell **** then EpiCept shall provide written notice to Durect of receipt of the Non-Transferring Shareholders exercise their respective options granted hereunder Third Party Offer and offer to purchase all Durect a license to develop, manufacture, use or sell such *** in such jurisdiction or jurisdictions on the same terms as the Third Party Offer. Such written notice (an “ROFR Notice”) shall specify the *** subject to such Third Party Offer, ***. Within thirty (30) days after Durect receives an ROFR Notice, if Durect or its Affiliate desires to negotiate a definitive agreement related to such Third Party Offer, Durect shall then send a written reply to EpiCept notifying EpiCept of such desire (an “ROFR Reply”). Upon receipt by EpiCept of an ROFR Reply, the Parties shall negotiate the terms of the shares owned by proffered offer contained in the Transferring Shareholder, after having been given notice, then the Transferring Shareholder shall have the right ROFR Notice in good faith for a period not to sell all of the shares to the prospective purchase set forth within the Transfer Notice exceed *** (the “Third PartyNegotiation Period”). The Transferring Shareholder, who received and is willing which period may be extended by mutual written agreement between the Parties.
(b) EpiCept shall not discuss, offer, negotiate, enter into, or agree to accept enter into an arms-lengthagreement for the manufacture, bona fideuse, written offer from a Third Party to purchase all, but not less than all, development and/or sale of *** with any third party during the pendency of the Shares then owned *** after an ROFR Notice is received by Durect and during any Negotiation Period. Accordingly, EpiCept shall not discuss, offer, negotiate, enter into or agree to enter into such a *** unless (i) Durect fails to send an ROFR Reply within the Transferring Shareholder *** after an ROFR Notice is received by Durect, or (ii) Durect fails to agree to enter into a definitive agreement with EpiCept with respect to any such ROFR Notice on the “Third Party Offer”) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required to be met by within the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring ShareholdersNegotiation Period. In the event that the Non-Transferring Shareholders do not exercise their respective rights provisions of first refusal hereunderSections 6.1(b)(i) or (ii) above have been met, EpiCept may enter into a definitive agreement with the Third Party Offer shall be accepted by third party with respect to the Transferring Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the subject Third Party Offer; provided, however, that if any terms of such agreement with such third party when taken as a whole would be less favorable to EpiCept than as specified in the ROFR Notice therefore, EpiCept shall deliver a new ROFR Notice to Durect specifying such variations from the initial ROFR Notice, whereupon the receipt of which by Durect shall trigger a *** for Durect to send a new ROFR Reply to EpiCept and, if it Durect provides such new ROFR Reply, another Negotiation Period therefore. The Third Parties hereby acknowledge and agree that neither Party shall execute and promptly deliver have an obligation to each party hereto, and enter into a definitive agreement with respect to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder any ROFR Notice arising under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effect.
Appears in 1 contract
Samples: License Agreement (Epicept Corp)
Third Party Offers. In If, at any time, the event none Management Shareholder (or his personal representative) (an “Offeree”) receives from an unrelated third party a bona fide offer to purchase for cash any of his or his Permitted Transferees’ Shares (the Shares subject to such offer, the “Offered Shares”) and the Offeree wishes to accept the offer, the Offeree shall give notice of the Non-Transferring Shareholders exercise their respective options granted hereunder offer to purchase all ACC (setting forth the name and address of the shares owned by third party, the Transferring Shareholderproposed purchase price, after having been given notice, then and the Transferring Shareholder other terms and conditions of the offer) and ACC shall have the right to sell all of the shares option (exercisable by notice to the prospective purchase set forth Offeree given within 30 days after the Transfer Notice (Offeree shall have given ACC the “Third Party”). The Transferring Shareholder, who received and is willing notice referred to accept an arms-length, bona fide, written offer from a Third Party above) to purchase all, but not less fewer than all, the Offered Shares at the same price per Share and on the other terms and conditions of the Offer. If ACC does not exercise the option described above to purchase all, but not fewer than all, the Offered Shares, the Offeree (or his personal representative) may, within 60 days after termination of the option described above, transfer all (but not fewer than all) such Shares then owned to the third party upon the terms and conditions of the original offer (but, if the Shares are not transferred within that 60-day period, they shall again be subject to this section 1.4). No such transfer may be made, however, unless the third party executes and delivers to ACC a written agreement, in form and substance reasonably satisfactory to ACC, agreeing to be bound by the Transferring Shareholder (the “Third Party Offer”) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights provisions of first refusal to buy his shares to the Non-Transferring Shareholdersthis section 1. The terms closing of the Third Party Offer required to be met by the Non-Transferring Shareholders any purchase under this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring Shareholders. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer section 1.4 shall be accepted held at a place and date specified by the Transferring ShareholderACC, if at all, within thirty (30) but not more than 60 days of after the expiration of the Shareholders’ right of first refusaloption described above. At the closing, but only on the exact terms of the Third Party Offer. The Third Party Management Shareholder (or personal representative) or Permitted Transferee shall execute and promptly deliver to each party heretoACC a certificate or certificates for the Shares being sold, duly endorsed in blank and with all required stock transfer stamps attached, and to ACC shall pay the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that purchase price for the Shares it has purchased are and being purchased. If the Management Shareholder’s personal representative is selling Shares, he or she also shall remain subject deliver to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effectACC all applicable estate tax waivers.
Appears in 1 contract
Third Party Offers. In (a) Until January 11, 2022, in the event none that the Company receives any written or oral proposal (the “Third Party Proposal”) from a third party to provide additional capital or equity or debt financing, the Company agrees that it shall not consider such Third Party Proposal unless, in the reasonable view of the Non-Transferring Shareholders exercise their respective options granted hereunder Company, such Capital Raising Round is reasonably likely to purchase all significantly enhance stockholder value; provided, however, that in such case the Company shall notify the Shareholder within two (2) Business Days of the shares owned receipt of the Third Party Proposal (without including any material, non-public information). The Shareholder shall, within three (3) Business Days of such notice, provide notice to the Company regarding whether it wishes to receive copies of all documents received by the Transferring Company relating to the Third Party Proposal, including, without limitation, a complete and accurate description of the Third Party Proposal and all amendments, revisions, and supplements thereto (the “Proposal Documents” and such notice the “Shareholder Response Notice”). Following receipt of the Shareholder Response Notice, the Company shall immediately provide the Proposal Documents to the Shareholder.
(b) Following receipt of the Proposal Documents from the Company, after having been given notice, then the Transferring Shareholder shall have the right to sell all of the shares to the prospective purchase set forth within the Transfer Notice (the “Third PartyRight of First Look”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than allthe obligation, to invest in the Company on the terms and conditions as set forth in the Proposal Documents (whether by itself to the exclusion of the Shares then owned by third party or together with the Transferring Shareholder (third party) upon written notice to the “Third Party Offer”) shall, notwithstanding Company that the Non-Transferring Shareholders failed Shareholder is exercising the Right of First Look provided pursuant to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholdersthis Section 3.2. The terms In furtherance of the Third Party Offer required to be met by Right of First Look, the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably Company agrees that it will (i) cooperate and readily performable by assist the Non-Transferring Shareholders. In Shareholder in conducting a due diligence investigation of the event Company and its corporate and financial affairs, and (ii) promptly provide the Shareholder with information and documents that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, Shareholder may reasonably request so as to allow the Third Party Offer shall be accepted by the Transferring Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the Third Party Offer. The Third Party shall execute and promptly deliver Shareholder to each party hereto, and to the Corporation, at the closing of a sale of Shares to the Third Party, make an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effectinformed investment decision.
Appears in 1 contract
Third Party Offers. In Notwithstanding anything to the contrary contained in this Article VI, in the event none of the Nonthat an offer is made by an unrelated third-Transferring Shareholders exercise their respective options granted hereunder party to purchase all of the shares owned by the Transferring Shareholder, after having been given notice, then the Transferring Shareholder shall have the right to sell all of the shares to the prospective purchase set forth within the Transfer Notice entire Company (the a “Third Party”). The Transferring Shareholder, who received and is willing to accept an armsThird-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”) shalland such Third-Party Offer is acceptable to FAREISI, notwithstanding that then FAREISI shall first offer to sell 100% of its Membership Interests to Experian by giving Experian written notice thereof specifying the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Third-Party Offer required upon which FAREISI is willing to be met by sell its Membership Interest (the Non“Third-Transferring Shareholders under Party Terms”). Following its receipt of such notice pursuant to this paragraph Section 6.05, Experian shall not include any nonhave a thirty (30) day period during which it may elect to acquire all of the Membership Interest of FAREISI upon the Third-monetary terms not reasonably and readily performable by the Non-Transferring ShareholdersParty Terms. In the event that Experian rejects the Nonoffer of FAREISI hereunder or fails to deliver a written notice accepting such offer within the applicable period, (a) FAREISI shall be free to sell its Membership Interest to such third-Transferring Shareholders do not exercise their respective rights party purchaser upon the Third-Party Terms and (b) Experian shall be obligated to sell its Membership Interest to such third-party purchaser upon the Third-Party Terms and otherwise upon terms no less favorable than those given by the third-party purchaser to FAREISI (pro rata based upon the relative size of first refusal hereunder, the Membership Interest of Experian vis-à-vis the Membership Interest of FAREISI) unless the closing of such Third Party Offer occurs on or prior to December 31, 2010, or if notice of the Third-Party Offer is delivered after exercise of the Put Option or the Call Option, in which case Experian shall be accepted obligated to sell its Membership Interest to such third-party purchaser, at Experian’s written election, either upon (x) the Third-Party Terms and otherwise upon terms no less favorable than those given by the Transferring Shareholder, if at all, within thirty third-party purchaser to FAREISI (30) days pro rata based upon the relative size of the expiration Membership Interest of Experian vis-à-vis the Membership Interest of FAREISI) or (y) for the then applicable Put Price (pursuant to the JV Agreement, and including any interest, fees, expenses or other amounts due thereunder) plus all accrued and unpaid distributions (together with all accrued and unpaid management services fee payable to Experian pursuant to Article II of the Shareholders’ right of first refusalJV Agreement) payable in cash, but only on the exact terms of the Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at as if such sale were the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effectPut Option.
Appears in 1 contract
Third Party Offers. The projects defined herein are committed to this financing collectively and shall not be segregated from the whole package without a separate written agreement. This Agreement shall be subject to the right of Dolar to consider alternative proposals as follows: In the event none Dolar receives a bonafide offer for the purchase of its interests in any of the Nonprojects that it reasonably deems are superior to the purchase contemplated to be made as provided above, it shall promptly notify Fellows of such offer, following which Fellows shall have fifteen (15) days in which to consummate the purchase of such interest on the terms of such third-Transferring Shareholders exercise their respective options granted hereunder party offer. If Fellows is unable to consummate the transaction within such fifteen day period (for any reason other than the fault or unwillingness of Dolar) Dolar shall thereafter have thirty (30) days to conclude a sale pursuant to such offer and in accordance with its terms. In the event Dolar fails to conclude such sale within such time, Fellows may proceed to complete its purchase all pursuant to the provisions of the shares owned Agreement. Notwithstanding the foregoing, in the event that Fellows/Newco pays to Dolar at any time that a third party offer is not pending, and prior to closing, an amount of $100,000 (which amount shall be credited toward the purchase price of the projects) the provisions above in Paragraph 6 relating to third party offers shall not have further effect and this Agreement shall become exclusive pending closing. The date for closing (on or before February 28, 2008) may be extended by mutual agreement of the Transferring Shareholderparties and shall be extended for an amount or amounts of time equal to the time spent by Dolar in attempting to close a third party offer. Except in the event this Agreement becomes exclusive as described in the previous paragraph, after having been given notice, then the Transferring Shareholder Dolar shall have the right to sell all continue to pursue financing of projects with third parties, but shall periodically update Fellows the progress made independently of this financing. For this reason, time is of the shares essence to the prospective purchase set forth within the Transfer Notice (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required to be met by the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring Shareholders. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer shall be accepted by the Transferring Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effectboth parties.
Appears in 1 contract
Third Party Offers. In EpiCept hereby grants to Durect, and Durect hereby accepts the event none following rights of first refusal:
(a) If, at any time during the Non-Transferring Shareholders exercise their respective options granted hereunder term of this Agreement, EpiCept considers and/or receives an offer by any third party seeking rights under the EpiCept Licensed Patents and/or Patents under the EpiCept Improvements to purchase all of the shares owned by the Transferring Shareholderdevelop, after having been given noticemanufacture, then the Transferring Shareholder shall have the right to use or sell all of the shares to the prospective purchase set forth within the Transfer Notice [* * *] (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”), then EpiCept shall provide written notice to Durect of receipt of the Third Party Offer and offer to Durect a license to develop, manufacture, use or sell such [* * *] in such jurisdiction or jurisdictions on the same terms as the Third Party Offer. Such written notice (an “ROFR Notice”) shallshall specify the [* * *] subject to such Third Party Offer, notwithstanding that [* * *]. Within [* * *] days after Durect receives an ROFR Notice, if Durect or its Affiliate desires to negotiate a definitive agreement related to such Third Party Offer, Durect shall then send a written reply to EpiCept notifying EpiCept of such desire (an “ROFR Reply”). Upon receipt by EpiCept of an ROFR Reply, the Non-Transferring Shareholders failed Parties shall negotiate the terms of the proffered offer contained in the ROFR Notice in good faith for a period not to exercise their options under Paragraphs 4(cexceed [* * *] days (the “Negotiation Period”), which period may be extended by mutual written agreement between the Parties.
(b) hereofEpiCept shall not discuss, grant successive irrevocable non-assignable rights offer, negotiate, enter into, or agree to enter into an agreement for the manufacture, use, development and/or sale of first refusal [* * *] with any third party during the pendency of the [* * *] day period after an ROFR Notice is received by Durect and during any Negotiation Period. Accordingly, EpiCept shall not discuss, offer, negotiate, enter into or agree to buy his shares enter into such a [* * *] unless (i) Durect fails to send an ROFR Reply within the Non-Transferring Shareholders. The [* * *] day period after an ROFR Notice is received by Durect, or (ii) Durect fails to agree to enter into a definitive agreement with EpiCept with respect to any such ROFR Notice on the terms of the Third Party Offer required to be met by within the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring ShareholdersNegotiation Period. In the event that the Non-Transferring Shareholders do not exercise their respective rights provisions of first refusal hereunderSections 6.1(b)(i) or (ii) above have been met, EpiCept may enter into a definitive agreement with the Third Party Offer shall be accepted by third party with respect to the Transferring Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the subject Third Party Offer; provided, however, that if any terms of such agreement with such third party when taken as a whole would be less favorable to EpiCept than as specified in the ROFR Notice therefore, EpiCept shall deliver a new ROFR Notice to Durect specifying such variations from the initial ROFR Notice, whereupon the receipt of which by Durect shall trigger a new [* * *] day period for Durect to send a new ROFR Reply to EpiCept and, if it Durect provides such new ROFR Reply, another Negotiation Period therefore. The Third Parties hereby acknowledge and agree that neither Party shall execute and promptly deliver have an obligation to each party hereto, and enter into a definitive agreement with respect to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder any ROFR Notice arising under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effect.
Appears in 1 contract
Samples: License Agreement (Durect Corp)
Third Party Offers. (a) Stockholder shall have no obligation to support any third party proposal to effect a business combination transaction with the Company or to offer a transaction providing value to the Company's public shareholders equivalent to that provided by any third party proposal, except in the following circumstances after a Stockholder Control Event:
(i) If Stockholder proposes to effect a business combination transaction with the Company or to effect a Rule 13e-3 transaction (as defined in Rule 13e-3 under the Exchange Act) involving the Company (whether or not such proposal is in response to a third party offer or proposal), then any such transaction shall be subject to the approval of the Independent Committee. In such event, if a third party (an "Interloper") proposes a bona fide alternative transaction that the Independent Committee determines to be a Superior Proposal to the proposal made by Stockholder, then Stockholder shall have ten Business Days or such longer period as the Independent Committee may determine (the "Topping Period") to offer an alternative transaction that is, in the judgment of the Independent Committee (after receipt of advice from a nationally recognized investment banking firm as to the fairness from a financial point of view of the price offered), at least as favorable from a financial point of view to the public shareholders of the Company (a "Matching Proposal") as the best proposal theretofore made by the Interloper. If Stockholder does not within the Topping Period make a Matching Proposal, then Stockholder shall be obligated to support (including by voting for or tendering into) such Superior Proposal of the Interloper (or, in the event none of any subsequent Superior Proposal from a third party, to support the most favorable transaction that is available to the Company from a financial point of view, in the good faith judgment of the Non-Transferring Shareholders exercise their respective options granted hereunder Independent Committee); provided, however, that if the consideration offered in the Interloper's Superior Proposal does not consist entirely of cash, then Stockholder shall not be obligated to purchase all support the proposed transaction with the Interloper, and may vote its Shares against such proposal (and will also have no obligation to make a Matching Proposal), if the Special Committee does not reconfirm, within five Business Days prior to the shareholder vote in respect of the shares owned proposed transaction with the Interloper if there is one (or, if not, within five days prior to the initial scheduled closing of a tender or exchange offer) (based on market conditions prevailing at that time, including the prices of the Acceptable Securities and any securities included in the best offer made by Stockholder during the Topping Period), that the proposed transaction with the Interloper continues to meet the standards required for a Superior Proposal in comparison to the best offer made by Stockholder during the Topping Period; provided, further, however, that in the event Stockholder does withdraw its support for the proposed transaction with the Interloper in accordance with this provision, Stockholder may not propose a business combination or Share acquisition transaction to the Company for a period of six months (unless permitted to do so by the Transferring ShareholderIndependent Committee). Any agreement with Stockholder or with an Interloper providing for a transaction of the type described in this Section 5.05(a)(i) shall include a "fiduciary out" provision allowing the Company to comply with this Section 5.05(a)(i).
(ii) If Stockholder agrees to a merger, after having been given noticetender or exchange offer or other business combination transaction with any party directly involving the Company, or agrees to sell any of its Shares to one or more parties other than the Company in a transaction to which Section 5.04(b)(vi) applies (in either such case, such other parties are referred to as the "Initial Buyer") and a third party Interloper proposes an alternative transaction that the Independent Committee determines to be a Superior Proposal to the transaction with the Initial Buyer, then the Transferring Shareholder Company shall have agree to such Superior Proposal, and Stockholder shall not use its voting power to block such Superior Proposal, but shall support (including by voting for or tendering into) such Superior Proposal (or, in the right event of any subsequent Superior Proposal from a third party, to sell all support the most favorable transaction that is available to the Company from a financial point of view, in the good faith judgment of the shares to the prospective purchase set forth within the Transfer Notice (the “Third Party”Independent Committee). The Transferring Shareholder, who received and is willing to accept Any agreement with an arms-length, bona fide, written offer from Initial Buyer providing for a Third Party to purchase all, but not less than all, transaction of the Shares then owned by type described in this Section 5.05(a)(ii) shall include a "fiduciary out" provision allowing the Transferring Shareholder (the “Third Party Offer”) shall, notwithstanding that the Non-Transferring Shareholders failed Company to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required to be met by the Non-Transferring Shareholders under comply with this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring Shareholders. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer shall be accepted by the Transferring Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at the closing of a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effectSection 5.05(a)(ii).
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Third Party Offers. In (a) During the event none Exclusive Referral Period and any Extended Exclusive Referral Period, as applicable, Gordon shall not negotiate or make xxx xxfers or promises to enter into any venture with any third party relating to future Brands involving their development, licensing, manufacturing, promotion, distribution or any activity related thereto, without first complying with the provisions set forth herein.
(b) If during the Exclusive Referral Period or any Extended Exclusive Referral Period, Drinks Americas fails to exercise its option to Participate within the period set forth in Section 3.1(c) with regard to a Brand properly Identified by Gordon, then Gordon may offer the rxxxx xo Partixxxxxx to a third party on Substantially Similar Terms as such Brand was proposed to Drinks Americas, such terms to include those set forth in Section 3.1(b) above. If the terms contained in the proposal to the third party are not Substantially Similar terms to those contained in the proposal to Drinks Americas, Gordon must first present the propoxxx xx Drinks Americas, following the procedures set forth in Section 3.1. If at any time following a properly offered proposal to a third party under this Section 3.5(b) and the consummation of the Non-Transferring Shareholders exercise their respective options granted hereunder to purchase all of transaction with such third party the shares owned by the Transferring Shareholder, after having been given notice, then the Transferring Shareholder shall have the right to sell all of the shares to the prospective purchase set forth within the Transfer Notice (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned by the Transferring Shareholder (the “Third Party Offer”) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms of the Third Party Offer required proposal are altered such that they are no long Substantially Similar Terms to those terms initially proposed to Drinks Americas, Gordon must follow the procedures sxx xxxth in Section 3.1 with regard to such revised proposal prior to the consummation of the transaction with the third party or such transaction with the third party will be met by deemed a violation of Section 3.5(a).
(c) If neither Drinks Americas nor a third party chooses to accept the Non-Transferring Shareholders under this paragraph terms of a proposed Brand's proposal, then, notwithstanding anything set forth herein, such Brand shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring Shareholders. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer shall be accepted by the Transferring Shareholder, if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact terms of the Third Party Offer. The Third Party shall execute and promptly deliver to each party hereto, and to the Corporation, at the closing of counted as a sale of Shares to the Third Party, an agreement acknowledging that the Shares it has purchased are and shall remain subject properly Identified Brand as required pursuant to this Agreement and agreeing to be personally bound hereby; and upon such closing the Third Party shall succeed the Transferring Shareholder as a Shareholder under this Agreement. In the event the Third Party Offer is not accepted by the Transferring Shareholder within thirty (30) days on the exact terms of the Third Party Offer, or if the Third Party does not succeed the Transferring Shareholder as a party to this Agreement, then such transfer shall be of no force and effectSection 3.
Appears in 1 contract
Samples: Consulting and Exclusive Referral Agreement (Drinks Americas Holdings, LTD)
Third Party Offers. In (a) Investor shall have no obligation to support any third party proposal to effect a business combination transaction with the event none Company or to offer a transaction providing value to the Company's public shareholders equivalent to that provided by any third party proposal, except in the following circumstances:
(i) If a third party (an "Third Party Proposer") proposes a bona fide business combination or other acquisition transaction to the Board of Directors, then Investor shall have ten Business Days or such longer period as the Board of Directors may determine (the "Topping Period") to offer an alternative transaction that is, in the judgment of the Non-Transferring Shareholders exercise their respective options granted hereunder Board of Directors (after receipt of advice from a nationally recognized investment banking firm as to purchase all the fairness from a financial point of view of the shares owned price offered), at least as favorable from a financial point of view to the public shareholders of the Company (a "Matching Proposal") as the best proposal theretofore made by the Transferring Shareholder, after having been given noticeThird Party Proposer. If Investor does not within the Topping Period make a Matching Proposal, then the Transferring Shareholder Investor shall have the right be obligated to sell all of the shares to the prospective purchase set forth within the Transfer Notice support (the “Third Party”). The Transferring Shareholder, who received and is willing to accept an arms-length, bona fide, written offer from a Third Party to purchase all, but not less than all, of the Shares then owned including by the Transferring Shareholder (the “Third Party Offer”voting for or tendering into) shall, notwithstanding that the Non-Transferring Shareholders failed to exercise their options under Paragraphs 4(c) hereof, grant successive irrevocable non-assignable rights of first refusal to buy his shares to the Non-Transferring Shareholders. The terms such proposal of the Third Party Offer required to be met by the Non-Transferring Shareholders under this paragraph shall not include any non-monetary terms not reasonably and readily performable by the Non-Transferring Shareholders. In the event that the Non-Transferring Shareholders do not exercise their respective rights of first refusal hereunder, the Third Party Offer shall be accepted by the Transferring Shareholder, Proposer if at all, within thirty (30) days of the expiration of the Shareholders’ right of first refusal, but only on the exact terms such proposal is a Superior Proposal of the Third Party Offer. The Proposer (or, in the event of any subsequent Superior Proposal from a third party, to support the most favorable transaction that is available to the Company from a financial point of view, in the good faith judgment of the Board of Directors); provided, however, that if the consideration offered in the Third Party Proposer's Superior Proposal does not consist entirely of cash, then Investor shall execute and promptly deliver not be obligated to each party heretosupport the proposed transaction with the Third Party Proposer, and may vote its shares of Common Stock against such proposal (and will also have no obligation to make a Matching Proposal), if any special committee of the Board of Directors does not reconfirm, within five Business Days prior to the Corporationshareholder vote in respect of the proposed transaction with the Third Party Proposer if there is one (or, at if not, within five days prior to the initial scheduled closing of a sale tender or exchange offer) (based on market conditions prevailing at that time, including the prices of Shares to the Third PartyAcceptable Securities and any securities included in the best offer made by Investor during the Topping Period), an agreement acknowledging that the Shares it has purchased are and shall remain subject to this Agreement and agreeing to be personally bound hereby; and upon such closing proposed transaction with the Third Party shall succeed Proposer continues to meet the Transferring Shareholder as standards required for a Shareholder under this Agreement. In Superior Proposal in comparison to the best offer made by Investor during the Topping Period; provided, further, that in the event Investor does withdraw its support for the proposed transaction with the Third Party Offer is Proposer in accordance with this provision, Investor may not accepted propose a business combination or Share acquisition transaction to the Company for a period of six months (unless permitted to do so by the Transferring Shareholder within thirty (30) days on the exact terms Board of Directors). Any agreement with Investor or with an Third Party Proposer providing for a transaction of the type described in this Section 6.2(a)(i) shall include a "fiduciary out" provision allowing the Company to comply with this Section 6.2(a)(i).
(ii) If Investor agrees to a merger, tender or exchange offer or other business combination transaction with any party directly involving the Company, or agrees to sell any of its shares of Common Stock or Preferred Stock to one or more parties other than the Company in a transaction to which Section 5.3 applies (in either such case, such other parties are referred to as the "Initial Buyer") and a third party Third Party Offer, or if Proposer proposes an alternative transaction that the Third Party does not succeed Board of Directors determines to be a Superior Proposal to the Transferring Shareholder as a party to this Agreementtransaction with the Initial Buyer, then the Company shall agree to such transfer Superior Proposal, and Investor shall be not use its voting power to block such Superior Proposal, but shall support (including by voting for or tendering into) such Superior Proposal (or, in the event of no force and effectany subsequent Superior Proposal from a third party, to support the most favorable transaction that is available to the Company from a financial point of view, in the good faith judgment of the Board of Directors). Any agreement with an Initial Buyer providing for a transaction of the type described in this Section 6.2(a)(ii) shall include a "fiduciary out" provision allowing the Company to comply with this Section 6.2(a)(ii).
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