Common use of Treatment of Certain Stockholder Profits Clause in Contracts

Treatment of Certain Stockholder Profits. (i) In the event that the Reorganization Agreement shall have been terminated at any time pursuant to Section 7.4(a) thereof or Section 7.4(d) thereof, or is terminated, at any time after an Acquisition Proposal is made, pursuant to Section 7.2(c) thereof (regardless of whether such termination is by Xxxx Xxxxx or the Company), Section 7.4(b) thereof or Section 7.4(c) thereof, and at the time of such termination less than 50.1% of the voting power of the issued and outstanding shares of capital stock of the Company entitled to vote on each of the matters set forth in Section 3 hereof is subject to valid and binding Voting Agreements in full force and effect in all respects. Each Stockholder shall pay to Xxxx Xxxxx on demand an amount equal to all profit (determined in accordance with Section 3(f) (ii) of such Stockholder from the consummation of any Acquisition Proposal (an "Acquisition Transaction") within 18 months of such termination. (ii) For purposes of this Section 3(f), the profit of any Stockholder from any Acquisition Transaction shall equal (A) the aggregate consideration received by such Stockholder (or which such Stockholder is legally entitled to receive) pursuant to such Acquisition Transaction, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation plus (B) the fair market value, on the date of disposition, of all Subject Shares, Options and Warrants of such Stockholder and shares of Common Stock acquired by such Stockholder upon exercise of any Option or Warrant (less the exercise price thereof) disposed of after the termination of the Reorganization Agreement and prior to the date of such consummation less (C) the fair market value of the aggregate consideration that would have been issuable or payable to such Stockholder pursuant to the Reorganization Agreement in effect on the date hereof, valued as of immediately prior to the first public announcement of the termination of, or the intention of Xxxx Xxxxx or the Company to terminate, the Reorganization Agreement, as if the Merger had been consummated on the date of such public announcement. For purposes of clause (C) above, the fair market value of the common stock of Holdings that would have been received by the Stockholders pursuant to the Reorganization Agreement as originally executed shall be deemed to be the fair market value of the common stock, par value $.01 per share, of Xxxx Xxxxx. (iii) For purposes of this Section 3(f), the fair market value of any non-cash consideration consisting of: (A) securities listed on a national securities exchange or traded on the NASDAQ/NMS shall be equal to the average closing price per share of such security as reported on the composite trading system of such exchange or by NASDAQ/NMS for the five trading days ending on the trading day immediately prior to the date of value determination; and (B) consideration which is other than cash or securities of the form specified in clause (A) of this Section 3(f) (iii) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 business days of the event requiring selection of such banking firm; provided, however, that if the parties are unable to agree within two business days after the date of such event as to the investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Xxxx Xxxxx, on the one hand, and the Stockholders, on the other hand. The determination of the investment banking firm shall be binding upon the parties. (iv) Any payment of profit under this Section 3(f) shall (x) if paid in cash, be paid by wire transfer of same day funds to an account designated by Xxxx Xxxxx and (y) if paid through a mutually agreed transfer of securities, to the extent such transfer is permitted by applicable law and the transfer of such securities to Xxxx Xxxxx would not adversely impact Xxxx Xxxxx, or the value of such securities, be paid through delivery of such securities, suitably endorsed for transfer.

Treatment of Certain Stockholder Profits. (ia) In the event that the Reorganization Merger Agreement shall have been terminated at any time pursuant to Section 7.4(a6.1(d) thereof or 6.1(e)(iii), (iv), (v) or (vi) (provided, with respect to a termination pursuant to Section 7.4(d6.1(e)(vi), a termination fee is payable to Parent pursuant to Section 6.3(a) of the Merger Agreement) thereof, or is terminated, at any time after an Acquisition Proposal is made, pursuant to Section 7.2(c) thereof (regardless of whether such termination is by Xxxx Xxxxx or the Company), Section 7.4(b) thereof or Section 7.4(c) thereof, and at the time of such termination less than 50.1% of the voting power of the issued and outstanding shares of capital stock of the Company entitled to vote on each of the matters set forth in Section 3 hereof is subject to valid and binding Voting Agreements in full force and effect in all respects. Each Stockholder shall pay to Xxxx Xxxxx on demand Parent an amount equal to all 50% of the profit (determined in accordance with this Section 3(f) (ii4) of such the Stockholder from the consummation sale or other disposition of any Acquisition Proposal (an "Acquisition Transaction") Shares within 18 months of such terminationtermination either pursuant to a Third Party Acquisition or at such time as a Third Party Acquisition is pending. Payment shall be made immediately upon the receipt of the proceeds from such sale or other disposition. (iib) For purposes of this Section 3(f)4, the profit of any the Stockholder from any Acquisition Transaction shall equal (A) the aggregate consideration received by such the Stockholder (for the Shares that were sold or which such Stockholder is legally entitled to receive) pursuant to such Acquisition Transactiondisposed of, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation plus less (B) the fair market value, on the date of disposition, of all Subject Shares, Options and Warrants of such Stockholder and shares of Common Stock acquired by such Stockholder upon exercise of any Option or Warrant (less the exercise price thereof) disposed of after the termination of the Reorganization Agreement and prior to the date of such consummation less (C) the fair market value of the aggregate consideration that would have been issuable or payable to such Stockholder pursuant to the Reorganization Agreement in effect on the date hereof, valued as of immediately prior to the first public announcement of the termination of, or the intention of Xxxx Xxxxx or the Company to terminate, the Reorganization Agreement, as if the Merger had been consummated on the date of such public announcement. For purposes of clause (C) above, the fair market value of the common stock of Holdings that would have been received $12.50 per Share multiplied by the Stockholders pursuant to the Reorganization Agreement as originally executed shall be deemed to be the fair market value number of the common stock, par value $.01 per share, of Xxxx XxxxxShares sold or disposed of. (iiic) For purposes of this Section 3(f)4, the fair market value of any non-cash consideration consisting of: (A) securities listed on a national securities exchange or traded or quoted on the NASDAQ/NMS Nasdaq shall be equal to the average closing price per share of such security as reported on the composite trading system of such exchange or by NASDAQ/NMS Nasdaq for the five trading days ending on the trading day immediately prior to the date of value determination; and (B) consideration which is other than cash or securities of the form specified in clause (A) of this Section 3(f) (iii4(c) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 business days of the event requiring selection of such banking firm; provided, however, that if the parties are unable to agree within two business days after the date of such event as to the investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Xxxx Xxxxx, on the one hand, Parent and the Stockholders, on the other handStockholder. The determination of the investment banking firm shall be binding upon the parties. (ivd) Any payment of profit under this Section 3(f) 4 shall (x) if be paid in cash, be paid the same proportion of cash and non-cash consideration as the aggregate consideration received by wire transfer of same day funds to an account designated by Xxxx Xxxxx and (y) if paid through a mutually agreed transfer of securities, to the extent such transfer is permitted by applicable law and Stockholder in the transfer of such securities to Xxxx Xxxxx would not adversely impact Xxxx Xxxxx, Third Party Acquisition or the value of such securities, be paid through delivery of such securities, suitably endorsed for transferother disposition.

Treatment of Certain Stockholder Profits. (i) In the event that the Reorganization Agreement shall have been terminated at any time pursuant to Section 7.4(a) thereof or Section 7.4(d) thereof, or is terminated, at any time after an Acquisition Proposal is made, pursuant to Section 7.2(c) thereof (regardless of whether such termination is by Xxxx Xxxxx Fred Meyer or the Company), Section 7.4(b) thereof or Section 7.4(c0.0(c) thereofthexxxx, and at the time of such termination less than 50.1% of the voting power of the issued and outstanding shares of capital stock of the Company entitled to vote on each of the matters set forth in Section 3 hereof is subject to valid and binding Voting Agreements in full force and effect in all respects. Each Stockholder shall pay to Xxxx Xxxxx Fred Meyer on demand an amount equal to all profit (determined in accordance xx axxxxxance with Section 3(f) (ii) of such Stockholder from the consummation of any Acquisition Proposal (an "Acquisition Transaction") within 18 months of such termination. (ii) For purposes of this Section 3(f), the profit of any Stockholder from any Acquisition Transaction shall equal (A) the aggregate consideration received by such Stockholder (or which such Stockholder is legally entitled to receive) pursuant to such Acquisition Transaction, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation plus (B) the fair market value, on the date of disposition, of all Subject Shares, Options and Warrants of such Stockholder and shares of Common Stock acquired by such Stockholder upon exercise of any Option or Warrant (less the exercise price thereof) disposed of after the termination of the Reorganization Agreement and prior to the date of such consummation less (C) the fair market value of the aggregate consideration that would have been issuable or payable to such Stockholder pursuant to the Reorganization Agreement in effect on the date hereof, valued as of immediately prior to the first public announcement of the termination of, or the intention of Xxxx Xxxxx Fred Meyer or the Company to terminate, the Reorganization AgreementAgreemenx, as if xs xx the Merger had been consummated on the date of such public announcement. For purposes of clause (C) above, the fair market value of the common stock of Holdings that would have been received by the Stockholders pursuant to the Reorganization Agreement as originally executed shall be deemed to be the fair market value of the common stock, par value $.01 per share, of Xxxx XxxxxFred Meyer. (iii) For purposes of this Section 3(f), the fair xxe xxxx market value of any non-cash consideration consisting of: (A) securities listed on a national securities exchange or traded on the NASDAQ/NMS shall be equal to the average closing price per share of such security as reported on the composite trading system of such exchange or by NASDAQ/NMS for the five trading days ending on the trading day immediately prior to the date of value determination; and (B) consideration which is other than cash or securities of the form specified in clause (A) of this Section 3(f) (iii) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 business days of the event requiring selection of such banking firm; provided, however, that if the parties are unable to agree within two business days after the date of such event as to the investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Xxxx XxxxxFred Meyer, on the one hand, and the StockholdersStockholdexx, on the ox xxx other hand. The determination of the investment banking firm shall be binding upon the parties. (iv) Any payment of profit under this Section 3(f) shall (x) if paid in cash, be paid by wire transfer of same day funds to an account designated by Xxxx Xxxxx Fred Meyer and (y) if paid through a mutually agreed transfer of securitiesxx xexxxxxies, to the extent such transfer is permitted by applicable law and the transfer of such securities to Xxxx Xxxxx Fred Meyer would not adversely impact Xxxx XxxxxFred Meyer, or the value of such securitiesxx sxxx xecurities, be paid through delivery of dxxxxexx xx such securities, suitably endorsed for transfer.