Call Option. (a) The Company shall have the right, at any time and from time to time commencing on July 1, 1999 to purchase from any holder of the Note (the "Call Option") the Note at a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying (i) the number of Conversion Shares that are subject to the Call Option, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which the Call Option shall be exercised (the "Call Exercise Date"). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Date, the Call Price shall be increased by one percent (1%) per month. (b) On the Call Exercise Date (i) the Purchasers shall deliver to the Company the Note, properly endorsed, representing the Note subject to the Call Option and (ii) the Company shall deliver to the Purchasers, in immediately available funds, the applicable Call Price. (c) The Call Option provisions described in this Section 2 shall at all times be subject to (i) the prior Conversion Rights of the Purchasers and (ii) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time of the Call Notice and on the Call Exercise Date.
Appears in 2 contracts
Sources: Put and Call Agreement (Vitech America Inc), Put and Call Agreement (Vitech America Inc)
Call Option. (a) The Company During the period beginning on the Flip Date and continuing until the first (1st) anniversary of the Flip Date (the “Call Option Period”), NEP Member shall have the right, but not the obligation, to acquire all, but not less than all, of the outstanding Class B Units at any time a purchase price that implies an Internal Rate of Return to GEPIF of seven and three quarters percent (7.75%), measured from time the Effective Date to time commencing on July 1the Call Option Closing Date (the “Call Option Purchase Price”), 1999 upon the terms and conditions set forth in this Section 7.02 (the “Call Option”). NEP Member may not assign its right to purchase from the outstanding Class B Units pursuant to this Section 7.02 to any holder Person other than NEP or a subsidiary thereof; provided, however, that, in the event of any such assignment, NEP Member and NEP shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Note Call Option.
(b) To exercise the Call Option, NEP Member shall deliver to the Class B Members written notice of such exercise (the "“Call Option"Option Notice”) the Note at a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying containing (i) the number of Conversion Shares that are subject to date (the “Call Option Closing Date”) on which the Call OptionOption is to be consummated (the “Call Option Closing”), (ii) the Call Option Purchase Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which form of consideration to be used to pay the Call Option Purchase Price, which shall be exercised (either cash, Non-Voting NEP Common Units, or a combination of cash and Non-Voting NEP Common Units, subject to Section 7.02(c), and the "Call Exercise Date"). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Date, the Call Price shall respective proportions thereof to be increased by one percent (1%) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver paid to the Company the NoteClass B Members (or their nominee(s)); provided, properly endorsedhowever, representing the Note subject to that, NEP may exercise the Call Option only if (A) the NEP Common Units are listed or admitted to trading on the Nasdaq Stock Market or the New York Stock Exchange, (B) the NEP Common Units into which the Non-Voting NEP Common Units are convertible, subject to and in accordance with the terms of the NEP Partnership Agreement, would not, immediately following conversion thereof, exceed more than twenty-two and a half percent (22.5%) of the publicly traded class of NEP Common Units then outstanding (inclusive of those NEP Common Units into which the Non-Voting NEP Common Units are convertible), and (iiC) NEP must have an effective registration statement on file with the Commission covering resales of the underlying NEP Common Units to be received upon conversion of the Non-Voting NEP Common Units; provided, further, that NEP Member may exercise the Call Option only if (y) the Company NEP LPA Amendment (as that term is used in the Purchase Agreement) shall deliver be in full force and effect, without any modification thereto, and (z) the Registration Rights Agreement shall be in effect with respect to the PurchasersNEP Common Units into which the Non-Voting NEP Common Units are convertible, subject to and in immediately available fundsaccordance with the terms of the NEP Partnership Agreement. The Call Option Notice shall be delivered to the Class B Members at least ten (10) days and no more than fifteen (15) days in advance of the Call Option Closing Date, it being understood that delivery of such Call Option Notice may be made prior to the applicable beginning of the Call PriceOption Period but shall not be valid if made after the end of the Call Option Period.
(c) Subject to Section 7.02(b), NEP Member may pay the Call Option Purchase Price, at its option, in either cash, Non-Voting NEP Common Units, or a combination of cash and Non-Voting NEP Common Units; provided, however, that cash may not constitute more than fifty percent (50%) of the total Call Option Purchase Price paid to the Class B Members (or their nominee(s)). If some or all of the consideration set forth in the Call Option Notice consists of Non-Voting NEP Common Units, the issuance price for each such Non- Voting NEP Common Unit will be specified as the 15-day VWAP of the NEP Common Units on the date of the Call Option Notice. The Class B Members shall have five (5) days following receipt of the Call Option Notice to notify NEP Member in writing that the Call Option Purchase Price shall be payable in cash (if any) up to a maximum of thirty percent (30%) of the total Call Option Purchase Price (with the balance to be paid in Non-Voting NEP Common Units), unless the Call Option Notice specified a higher percentage payable in cash.
(d) If, at any time during the last six (6) months of the Call Option Period, NEP Member has not exercised the Call Option pursuant to Section 7.02(a) and over any period of forty-five (45) days during such six-month period the NEP Common Units yield an average, last quarter annualized paid dividend yield above eight percent (8.0%), NEP Member may extend the Call Option Period for an additional one (1) year following the last day of the Call Option Period (the “Call Option Period Extension”) by providing written notice thereof to the Class B Members. The Call Option provisions described Period Extension shall, if so extended, expire on the fifth (5th) anniversary of the Effective Date. At any time during the Call Option Period Extension, NEP Member shall have the right, but not the obligation, to acquire all, but not less than all, of the outstanding Class B Units at a purchase price (the “Call Option Extension Purchase Price”), payable, at its option, in this Section 2 shall at all times be subject either cash, Non-Voting NEP Common Units, or a combination of cash and Non-Voting NEP Common Units, that implies an Internal Rate of Return to GEPIF, measured from the Effective Date to the Call Option Closing Date, of either (i) the prior Conversion Rights eight and three quarters percent (8.75%), if fifty percent (50%) or more of the Purchasers and Call Option Extension Purchase Price is paid in Non-Voting NEP Common Units, or (ii) nine and three quarters percent (9.75%), if over fifty percent (50%) of the shares Call Option Extension Purchase Price is paid in cash; provided, however, that Non-Voting NEP Common Units may be used to pay any portion of the Call Option Extension Purchase Price only if (A) the NEP Common Units are listed or admitted to trading on the Nasdaq Stock underlying Market or the Notes must be covered by an effective resale registration statement pursuant New York Stock Exchange, (B) the NEP Common Units into which the Non-Voting NEP Common Units are convertible, subject to and in accordance with the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at NEP Partnership Agreement, would not, immediately following conversion thereof, exceed more than twenty-two and a half percent (22.5%) of the time publicly traded class of NEP Common Units then outstanding (inclusive of those NEP Common Units into which the Non-Voting NEP Common Units are convertible), and (C) NEP must have an effective registration statement on file with the Commission covering resales of the underlying NEP Common Units to be received upon conversion of the Non-Voting NEP Common Units; provided, further, that Non-Voting NEP Common Units may be used to pay any portion of the Call Notice Option Extension Purchase Price only if (y) the NEP LPA Amendment (as that term is used in the Purchase Agreement) shall be in full force and effect, without any modification thereto, and (z) the Registration Rights Agreement shall be in effect with respect to the NEP Common Units into which the Non-Voting NEP Common Units are convertible, subject to and in accordance with the terms of the NEP Partnership Agreement. If some or all of the consideration set forth in such notice consists of Non-Voting NEP Common Units, the issuance price for each such Non-Voting NEP Common Unit will be specified as the 15-day VWAP of the NEP Common Units on the date of such notice. To exercise its right set forth herein, NEP Member shall, prior to expiration of the Call Exercise DateOption Period Extension and at least ten (10) days and no more than fifteen (15) days in advance of such exercise, deliver to the Class B Members written notice containing the same information set forth in Section 7.02(b) with respect to the Call Option Notice. The Class B Members shall have five (5) days following receipt of such notice to notify NEP Member in writing that the Call Option Extension Purchase Price shall be payable in cash (if any) up to a maximum of thirty percent (30%) of the total Call Option Extension Purchase Price (the “Maximum Requested Cash Portion”) (with the balance to be paid in Non-Voting NEP Common Units), unless such notice specified a higher percentage payable in cash.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (NextEra Energy Partners, LP), Membership Interest Purchase Agreement (NextEra Energy Partners, LP)
Call Option. (a) The Company Notwithstanding anything in this Agreement to the contrary (but subject to the terms of this Section 9.4 and Schedule 2.12(c)), at any time beginning on the first day after the third (3rd) anniversary of the date hereof (such exercise date, the “Trigger Date”), Suzano shall have the right, but not the obligation, to purchase and acquire, subject to the terms and conditions of this Section 9.4, as elected by K-C, either (i) all (but not less than all) of the outstanding Shares held by K-C or any of its Affiliates (“Direct Shares”), (ii) all (but not less than all) of the outstanding equity interests of any Dutch Holdco Entity that holds Direct Shares (“Indirect Shares”) or (iii) any combination of Direct Shares and Indirect Shares that results in the Transfer of all (but not less than all) the outstanding Shares held by K-C Parent and its Affiliates (the Direct Shares, Indirect Shares or any combination thereof, as the case may be, the “Call Shares”) and K-C shall have the obligation, subject to the terms and conditions set forth in this Section 9.4, to Transfer to Suzano (or its designee) all the Call Shares, in each case, free and clear of all Encumbrances (other than restrictions on transfer created by this Agreement or under applicable securities Laws), at the Call Option Purchase Price determined in accordance with Schedule VII and this Section 9.4, by delivering to K-C a Call Option Notice (the “Call Option”). If K-C elects to Transfer any of its Indirect Shares pursuant to this Section 9.4(a), K-C Parent shall represent and warrant to Suzano that each Dutch Holdco Entity that holds such Indirect Shares, as of the Call Option Closing Date, (I) is a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the Laws of the Netherlands and was formed solely for the purposes of holding the Shares and activities relating directly to the Pre-Closing Reorganization, and (II) has not (or shall not have) engaged at any time in any other business or activities other than those relating solely to holding the Shares and from activities relating directly to the Pre-Closing Reorganization, and has not (or shall not have) any liabilities (contingent or otherwise), debts or obligations of any nature whatsoever or made any investments at any time other than holding the Shares or activities relating directly to time commencing on July 1the Pre-Closing Reorganization.
(b) To exercise the Call Option, 1999 Suzano shall deliver to purchase from any holder K-C written notice of the Note such exercise (the "“Call Option"Option Notice”) the Note at a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying containing (i) the number of Conversion Shares that are subject to scheduled date (the “Call Option, (iiOption Closing Date”) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which the Call Option is to be consummated (the “Call Option Closing”), (ii) Suzano’s calculation of (A) the Specified Adjusted EBITDA as of the Measurement Time and (B) the resulting Call Option Purchase Price (assuming, solely for this purpose, the Net Indebtedness, the CapEx Deviation, the SAP Cost Reimbursement Amount and the Input Costs Deviation is zero dollars ($0)), (iii) the form of consideration to be used to pay the Call Option Purchase Price, which shall be exercised cash, and (iv) Suzano’s indication of whether Suzano has or has not engaged KPMG LLP (“KPMG”) for any Material Accounting Engagement in the "two (2) years immediately prior to the date of such Call Exercise Option Notice. The Call Option Notice shall be irrevocable by ▇▇▇▇▇▇. Upon receipt of the initial Call Option Notice, K-C shall either (x) consummate the Call Option Closing (subject to the determination of the Estimated Call Option Purchase Price pursuant to Section 9.4(c)) at 10:00 a.m. (Dallas, Texas time) with Suzano on the date that is the later of the Call Option Closing Date", or within five (5) Business Days of receipt of all Required Governmental Authorizations in accordance with Section 9.4(d) (or at such other date and time mutually agreed in writing upon by ▇▇▇▇▇▇ and K-C), or (y) if, and only if, the Specified Adjusted EBITDA as of the Measurement Time is less than the Baseline EBITDA, follow the procedures set forth on Schedule VII. Commencing Suzano may deliver the initial Call Option Notice prior to the first date on which ▇▇▇▇▇▇ is permitted to exercise the Call Option in accordance with Section 9.4(a) (but, for the avoidance of doubt, subject to Schedule 2.12(c), neither the Trigger Date nor the Call Option Closing Date shall occur prior to the first day after the third anniversary of the month from August 1date hereof). Following K-C’s receipt of the Call Option Notice (except in the event of an EBITDA Insufficiency Delay Period) or the Second Call Option Notice, 1999 as applicable, K-C shall have forty five (45) days to deliver to Suzano a written notice of its good-faith disagreement (an “EBITDA Notice of Disagreement”) with respect to the calculation of the Specified Adjusted EBITDA as of the Measurement Time set forth in the Call Option Notice or the Second Call Option Notice, as applicable; provided that the Company and Suzano shall reasonably cooperate in good faith with K-C and provide K-C with the access contemplated by Section 8.1; provided, further, that K-C shall indicate in writing in such EBITDA Notice of Disagreement whether K-C has or has not engaged KPMG for any Material Accounting Engagement in the two (2) years immediately prior to the date of such EBITDA Notice of Disagreement. If K-C delivers an EBITDA Notice of Disagreement, each of K-C and ▇▇▇▇▇▇ shall use its reasonable best efforts to seek to resolve in writing any differences that they may have with respect to each disputed item specified by K-C in the EBITDA Notice of Disagreement within thirty (30) days following delivery of the EBITDA Notice of Disagreement by K-C to Suzano. Any disputed items resolved in writing between K-C and ▇▇▇▇▇▇ within such thirty (30)-day period shall be final and binding with respect to such items, and if K-C and ▇▇▇▇▇▇ agree in writing on the resolution of each month thereafter until disputed item specified by K-C in the Maturity DateEBITDA Notice of Disagreement and the amounts of Specified Adjusted EBITDA, the Call Price amounts so determined shall be increased final and binding on K-C and Suzano for all purposes hereunder. If K-C and ▇▇▇▇▇▇ cannot resolve all such differences by one percent 11:59 p.m. Dallas, Texas time on the day that is thirty (1%30) per month.
days after K-C delivers the EBITDA Notice of Disagreement, K-C and ▇▇▇▇▇▇ shall submit such dispute, and each of K-C and ▇▇▇▇▇▇ shall submit their respective good-faith calculations of the Specified Adjusted EBITDA as of the Measurement Time, in writing to KPMG (bprovided that, if KPMG declines to review the dispute, or any of K-C, Suzano or the Company have engaged KPMG for a Material Accounting Engagement in the two (2) On years immediately prior to the exercise of the Call Exercise Date Option, then ▇▇▇▇▇▇ and K-C shall elect to submit such dispute to another internationally recognized U.S.-based firm of independent certified public accountants as mutually agreed between Suzano and K-C, and all the references to KPMG in this Section 9.4 shall be to such other Person). The Company, Suzano and K-C shall enter into a customary engagement letter with KPMG. The Company, ▇▇▇▇▇▇ and K-C shall use their commercially reasonable efforts to cause KPMG to render a written decision resolving the matters submitted to it within thirty (30) days following the submission thereof. All communications with KPMG shall include at least one Representative of each of the Company, Suzano and K-C, and none of the Company, Suzano and K-C shall be permitted to communicate with KPMG other than as expressly set forth herein. KPMG shall consider only those items and amounts in Suzano’s and K-C’s respective calculations of the Specified Adjusted EBITDA as of the Measurement Time that are identified as being items and amounts to which ▇▇▇▇▇▇ and K-C have been unable to agree. The scope of the disputes to be resolved by KPMG shall be limited to correcting mathematical errors, determining whether any other non-recurring specific item included in Adjusted EBITDA was included in accordance with the definition of Adjusted EBITDA, and determining whether the items and amounts in dispute were determined in accordance with IFRS, and KPMG shall not be permitted to make any other determination. In resolving any disputed item, KPMG may not assign a value to any item greater than the greatest value or less than the smallest value for such item set forth on Suzano’s and K-C’s respective calculations of Specified Adjusted EBITDA, as applicable. KPMG’s determination of the Specified Adjusted EBITDA as of the Measurement Time shall be based solely on written materials submitted by the Company, Suzano and K-C (i.e., not on independent review); provided, further, that such determination shall be final and binding on both K-C and ▇▇▇▇▇▇ and shall not be subject to dispute resolution as set forth in Section 13.13. The final Specified Adjusted EBITDA shall be (i) if K-C does not trigger an EBITDA Insufficiency Delay Period, if applicable, and does not deliver an EBITDA Notice of Disagreement, the Purchasers shall deliver to Specified Adjusted EBITDA as of the Company the Note, properly endorsed, representing the Note subject to Measurement Time set forth in the Call Option and Notice or the Second Call Option Notice, as applicable, (ii) the Company shall deliver to the Purchasersif K-C delivers an EBITDA Notice of Disagreement, in immediately available fundsbut Suzano and K-C resolve such differences, the applicable Call PriceSpecified Adjusted EBITDA as of the Measurement Time agreed by ▇▇▇▇▇▇ and K-C and (iii) if KPMG is engaged pursuant to this Section 9.4(b), the Specified Adjusted EBITDA as determined by KPMG (each such amount, the “Final Specified Adjusted EBITDA”). The determination of the Final Specified Adjusted EBITDA shall be conclusive and binding upon the Company, Suzano and K-C and shall not be subject to appeal or further review, absent fraud or manifest error. Judgment or award may be entered upon the written determination of KPMG in accordance with Section 13.13. In acting under this Agreement, KPMG shall function solely as an expert and not as an arbitrator; provided that KPMG shall have the power to conclusively resolve differences in disputed items as specified in this Section 9.4(b).
(c) The At least five (5) Business Days prior to the Call Option provisions described Closing Date, the Company shall prepare, or cause to be prepared, and deliver to Suzano and K-C a statement (the “Preliminary Call Option Closing Statement”) that sets forth in this Section 2 shall at all times be subject to reasonable detail the Company’s good faith estimate, in each case, determined as of 12:01 a.m. Dallas, Texas time on the Call Option Closing Date (the “Call Option Calculation Time”), of (i) Net Indebtedness (the prior Conversion Rights “Estimated Net Indebtedness”), (ii) CapEx Deviation (the “Estimated CapEx Deviation”), (iii) the SAP Cost Reimbursement Amount (the “Estimated SAP Cost Reimbursement Amount”), (iv) the Input Costs Deviation (the “Estimated Input Costs Deviation”) and (v) the resulting calculation of the Purchasers Call Option Purchase Price based on the Final Specified Adjusted EBITDA (the “Estimated Call Option Purchase Price”). Following the delivery of the Preliminary Call Option Closing Statement, but prior to the Call Option Closing Date, each of Suzano and K-C shall have the right (but not the obligation) to review the Preliminary Call Option Closing Statement. Prior to the Call Option Closing Date, the Company will review any comments proposed by K-C or Suzano with respect to the Preliminary Call Option Closing Statement and will consider, in good faith, any appropriate changes. Suzano, K-C and the Company shall in good faith seek to resolve any differences that they may have with respect to the computation of any of the items in the Preliminary Call Option Closing Statement; provided that if Suzano, K-C and the Company are unable to resolve such differences prior to the Call Option Closing Date, the amounts of Estimated Net Indebtedness, Estimated CapEx Deviation, Estimated SAP Cost Reimbursement Amount, Estimated Input Costs Deviation and Estimated Call Option Purchase Price as reflected in the Preliminary Call Option Closing Statement shall be used for purposes of calculating the Estimated Call Option Purchase Price to be paid on the Call Option Closing Date.
(d) On the Call Option Closing Date, (i) K-C Parent, K-C or its applicable Affiliates, as applicable, shall execute and deliver a transfer agreement in form and substance reasonably acceptable to the transferor and the transferee providing for (or other instrument necessary to give effect to, including, if applicable, a notarial deed of transfer of shares executed by a Dutch civil-law notary) the Transfer and delivery of the Call Shares, free and clear of all Encumbrances (other than restrictions on transfer created by this Agreement or applicable securities Laws), to Suzano or its designee; and (ii) Suzano or its designee will pay the shares Estimated Call Option Purchase Price to K-C (or its nominee(s)) by wire transfer of Common Stock underlying immediately available funds to a bank account designated in writing by K-C Parent (or its nominee(s)) at least two (2) Business Days prior to the Notes must date the payment is due. The Shareholders agree that the Call Option Closing shall be covered subject to the receipt of all required regulatory consents or approvals from any Governmental Authority (“Required Governmental Authorizations”). Each of the Company, Suzano, K-C Parent and K-C shall use its reasonable best efforts to cooperate in obtaining such Required Governmental Authorizations (if any), including (A) cooperating with each other in connection with filings required to be made by an effective resale registration statement any party under applicable Law and liaising with each other in relation to each step of the procedure before the relevant Governmental Authorities and as to the contents of all communications with such Governmental Authorities; (B) to the extent practicable and permitted by Law or Governmental Authority, providing the other parties with a copy of notifications or filings in draft form and giving such other parties a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Authorities; (C) furnishing to the other parties all information within its possession that is required for any application or other regulatory filing to be made by the other party pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 applicable Law in connection with the Required Governmental Authorizations; (Vitech America, Inc.D) terms promptly notifying each other of any material communications from or with any Governmental Authority with respect to the Required Governmental Authorizations and ensuring to the extent practicable and permitted by Law or Governmental Authority that each of the Securities Purchase Agreement at parties is entitled to attend any material meetings, conferences, telephone calls, or other substantive discussions with or other appearances before any Governmental Authority with respect thereto; (E) reasonably consulting and cooperating with one another in connection with all analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to applicable Law; and (F) without prejudice to any rights of the time parties hereunder, reasonably consulting and cooperating in all respects with the other in defending all actions by or before any Governmental Authority challenging the consummation of the Call Notice Option Closing. Each of the Company and on K-C acknowledge and agree that ▇▇▇▇▇▇ shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary Required Governmental Authorizations from the relevant Governmental Authorities in connection with the Call Exercise DateOption and the consummation of the Call Option Closing and each of the Company and K-C shall use its reasonable best efforts to take all actions to support Suzano in connection therewith.
(e) Following consummation of the Call Option pursuant to which all of K-C’s Shares are acquired by Suzano (or its designee), subject to Section 10.1, the Managing Shareholder will amend this Agreement to reflect the withdrawal of K-C and the transfer of the Shares effective as of the Call Option Closing.
(f) The fees and expenses of KPMG incurred pursuant to Section 9.4(b) shall be borne by the party whose calculation of Specified Adjusted EBITDA is furthest away from the Final Specified Adjusted EBITDA determined by KPMG.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Kimberly Clark Corp)
Call Option. (a) The Company If (i) the Participant’s employment with or service to the Employer is terminated by Employer for Cause, (ii) the Participant voluntarily resigns the Participant’s employment with or services, as applicable, to the Employer when grounds for Cause exist, or (iii) a Restrictive Covenant Violation occurs, the Partnership shall have the right, at any time and from time to time commencing on July 1for 12 months following, 1999 to purchase from any holder as applicable, each of the Note (the "Call Option"x) the Note at a call price of one hundred and sixteent & 6/10 percent Termination Date or (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying (iy) the number date of Conversion Shares that are subject to such Restrictive Covenant Violation (or, if later, the Call Option, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, date on which the General Partner has actual knowledge thereof), to purchase (together with the rights in Sections 2.1(b) and 2.1(c), the “Call Option Option”), and each member of the Participant’s Group shall be exercised (required to sell to the "Call Exercise Date"). Commencing on the first day Partnership, all or any portion of the month from August Subscribed Units then held by such member of the Participant’s Group at a purchase price per Subscribed Unit equal to the lesser of (1, 1999 and on each month thereafter until ) Fair Market Value (measured as of the Maturity Datedate of the election to purchase such units is delivered, the Call Price “Repurchase Notice Date”) and (2) Cost; provided, that such purchase price shall not be increased by one percent (1%) per monthless than zero.
(b) On If the Call Exercise Date (i) Participant’s employment with or service to, as applicable, Parent and its Subsidiaries terminates for any reason other than as provided for in Section 2.1(a), the Purchasers Partnership shall deliver have the right, for 12 months following the Termination Date, to purchase, and each member of the Participant’s Group shall be required to sell to the Company Partnership, all or any portion of the NoteSubscribed Units then held by such member of the Participant’s Group at a purchase price per Subscribed Unit equal to Fair Market Value (measured as of the Repurchase Notice Date); provided, properly endorsed, representing the Note subject to the Call Option and (ii) the Company that such purchase price shall deliver to the Purchasers, in immediately available funds, the applicable Call Pricenot be less than zero.
(c) In the event that the Participant engages in a Competing Business at any time after the Participant’s Termination Date (regardless of whether such conduct constitutes a Restrictive Covenant Violation), then the Partnership shall have the right, for 12 months following the date of such engagement in a Competing Business (or, if later, the date on which the General Partner has knowledge thereof), and each member of the Participant’s Group shall be required to sell to the Partnership, all or any portion of the Subscribed Units then held by such member of the Participant’s Group at a purchase price per Subscribed Unit equal to Fair Market Value (measured as of the Repurchase Notice Date). The Partnership may elect to exercise its Call Option in Section 2.1(a) in lieu of this Section 2.1(c), to the extent applicable.
(d) If the Partnership desires to exercise the Call Option pursuant to this Section 2.1, the Partnership shall send written notice to each member of the Participant’s Group of its intention to purchase the Subscribed Units, specifying the number of Subscribed Units to be purchased and the purchase price thereof (the “Call Notice”). Subject to the provisions described of Section 3, the closing of the purchase shall take place at the principal office of the Partnership on a date specified by the Partnership not later than the 30th day after the giving of the Call Notice. Notwithstanding the foregoing, if the Partnership elects not to exercise the Call Option pursuant to this Section 2.1 (or elects to exercise the Call Option with respect to less than all the Subscribed Units), the Sponsor may elect to cause one of its Affiliates or another designee to purchase such Subscribed Units on the same terms and conditions set forth in this Section 2 shall at all times be subject 2.1 by providing written notice to (i) the prior Conversion Rights each member of the Purchasers and (ii) the shares Participant’s Group of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant its intention to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time of the Call Notice and on the Call Exercise Datepurchase Subscribed Units.
Appears in 1 contract
Sources: Subscription Agreement (Bumble Inc.)
Call Option. (a) The Company At any time, and from time to time, on or after December 18, 2025, but prior to December 18, 2034, XPLR Member shall have the right, at any time and from time but not the obligation, to time commencing on July 1acquire, 1999 to purchase from any holder of the Note (the "Call Option") the Note at a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying (i) the number of Conversion Shares that are subject to the Call Optionlimitations and requirements of this Section 7.02, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which the Call Option shall be exercised (the "Call Exercise Date"). Commencing on the first day all or any portion of the month outstanding Class B Units at a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from August 1, 1999 and on each month thereafter until the Maturity Date, the Call Price shall be increased by one percent (1%) per month.
(b) On the Call Exercise applicable Acquisition Date (i) the Purchasers shall deliver to the Company the Note, properly endorsed, representing the Note subject of such Class B Unit to the Call Option Closing Date, of six and seventy-six hundredths percent (6.76%) (the “Call Option Purchase Price”), upon the terms and conditions set forth in this Section 7.02 (the “Call Option”); provided, however, that, if XPLR Member has elected (in its sole and absolute discretion) to make the Flip Date Election pursuant to the initial paragraph of Section 5.01(e), then, solely with respect to the delivery of any Call Option Notice that occurs after December 18, 2030, the Call Option Purchase Price shall be equal to the sum of (i) an amount that results in an Internal Rate of Return per Class B Unit purchased at the applicable Call Option Closing pursuant to this Section 7.02 of six and seventy-six hundredths percent (6.76%), measured from the applicable Acquisition Date of such Class B Unit through December 18, 2030 (or, if XPLR Member shall have delivered the FDE Demand Notice to the Class B Member Representative pursuant to Section 9.07(b), the date on which the FDE Demand Notice was delivered), plus (ii) an amount that results in an Internal Rate of Return per Class B Unit purchased at such Call Option Closing pursuant to this Section 7.02 of nine and three quarters percent (9.75%), measured from December 19, 2030 (or, if XPLR Member shall have delivered the Company shall deliver FDE Demand Notice to the PurchasersClass B Member Representative pursuant to Section 9.07(b), the date on which the FDE Demand Notice was delivered), to the Call Option Closing Date. XPLR Member may not assign its right to purchase the outstanding Class B Units pursuant to this Section 7.02 to any Person other than XPLR or a Subsidiary thereof; provided, however, that, in immediately available fundsthe event of any such assignment, the applicable Call Price.
(c) The Call Option provisions described XPLR Member and XPLR shall remain subject to their respective obligations set forth in this Section 2 shall at all times be subject to (i) the prior Conversion Rights of the Purchasers and (ii) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time 7.02 upon any exercise of the Call Notice and on the Call Exercise DateOption.
Appears in 1 contract
Sources: Limited Liability Company Agreement (XPLR Infrastructure, LP)
Call Option. (a) The Company At any time, and from time to time, on or after December 4, 2022, but prior to December 4, 2026, NEP Member shall have the right, but not the obligation, to acquire, subject to the limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the Effective Date to the Call Option Closing Date (the “Call Option Purchase Price”), upon the terms and conditions set forth in this Section 7.02 (the “Call Option”), of (i) seven and seventy-seven hundredths of a percent (7.77%) on each Class B Unit acquired upon the exercise of such Call Option, for any time Call Option Closing Date that occurs prior to December 4, 2025, or (ii) eight and seventy-seven hundredths of a percent (8.77%) on each Class B Unit acquired upon the exercise of such Call Option, for any Call Option Closing Date that occurs on or after December 4, 2025, (provided, however, that the Internal Rate of Return set forth in this clause (ii) shall be measured only from time the third (3rd) anniversary of the Effective Date to time commencing on July 1the applicable Call Option Closing Date, 1999 and, with respect to the period from the Effective Date to the third (3rd) anniversary of the Effective Date, the Internal Rate of Return shall be as set forth in clause (i)). NEP Member may not assign its right to purchase from the outstanding Class B Units pursuant to this Section 7.02 to any holder Person other than NEP or a Subsidiary thereof; provided, however, that, in the event of any such assignment, NEP Member and NEP shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Note Call Option.
(b) To exercise the Call Option, NEP Member shall deliver to the Class B Members written notice of such exercise (the "“Call Option"Option Notice”) following the end of trading on a Trading Day containing (i) the Note at date (the “Call Option Closing Date”) on which the Call Option is to be consummated (the “Call Option Closing”), which shall be seven (7) Business Days following the date the Call Option Notice is delivered to the Class B Members, (ii) the number of Class B Units to be purchased, (iii) the Call Option Purchase Price per Class B Unit, and (iv) the form of consideration to be used to pay the Call Option Purchase Price, which shall be either cash or NEP Common Units, or a call price combination of cash and NEP Common Units, subject to the other requirements of this Section 7.02, and the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that NEP Member may consummate a maximum of one hundred (1) Call Option Closing in any calendar quarter. The Call Option Notice shall be irrevocable except as provided in this Section 7.02. Delivery of the initial Call Option Notice may be made prior to the first date on which NEP Member is permitted to exercise the Call Option in accordance with the preceding sentence (but for the avoidance of doubt, no Call Option Closing shall occur prior to December 4, 2022). No Call Option Notice may be delivered, nor may any Call Option Closing be consummated, within fourteen (14) calendar days before any date on which NEP publicly announces its earnings for any Quarter or Fiscal Year (or any other expected public announcement of earnings or other “blackout period” under NEP Member’s trading policies that are applicable to all holders of NEP Common Units).
(c) No Call Option may be exercised, and sixteent & 6/10 no Call Option Notice may be issued, (i) for a number of Class B Units that is less than eight percent (116.68%) of the principal amountClass B Units outstanding on the date of the applicable Call Option Notice; and (ii) if, and to the extent that, as a result of such exercise, on the applicable Call Option Closing Date, the holders of Class B Units other than the NEP Class B Parties would own less than sixteen percent (16%) of the Class B Units then outstanding, unless, in the case of this clause (ii), the exercise of such Call Option is for the purchase of all remaining Class B Units not held by the NEP Class B Parties.
(d) The maximum number of Class B Units purchased in any calendar quarter pursuant to the exercise of a Call Option shall be the product of (i) the lesser of (A) the sum of (x) twenty-five percent (25%), plus accrued (y) the Buyout Rollover Percentage, and unpaid interest thereon (B) fifty percent (50%), multiplied by (ii) the aggregate number of Class B Units outstanding on the Effective Date.
(e) NEP Common Units may be used for payment of the Call Option Purchase Price at any Call Option Closing Date subject to the following limitations and the satisfaction of each of the following conditions as of the applicable Call Option Closing Date:
(i) the NEP Common Units are listed or admitted to trading on the Nasdaq Stock Market or the New York Stock Exchange;
(ii) the Registration Rights Agreement is in effect with respect to the NEP Common Units, subject to and in accordance with the terms of the NEP Limited Partnership Agreement;
(iii) NEP shall have filed a registration statement with the SEC registering the resale of the NEP Common Units issued at such Call Option Closing, and such registration shall have been declared effective by the SEC, and no stop order shall have been issued with respect thereto;
(iv) (A) none of NEP or its Affiliates has knowledge of previously undisclosed material events or developments that NEP or such Affiliate would be obligated to disclose publicly, under applicable Law or the rules of the National Securities Exchange on which the NEP Common Units are listed, if NEP or such Affiliate were offering and selling NEP Common Units (or other publicly traded securities), the disclosure of which would reasonably be expected to negatively affect the trading price of NEP Common Units on the applicable National Securities Exchange; and (B) NEP (or its Affiliates) shall have publicly disclosed any material events or developments that would reasonably be expected to negatively affect the trading price of NEP Common Units on the applicable National Securities Exchange at least one (1) full Trading Day (on which NEP Common Units traded on the applicable National Securities Exchange without stop or interruption) prior to the issuance of any Call Option Notice;
(v) in any exercise of the Call Option, the aggregate number of NEP Common Units that will be issued to holders of Class B Units at the applicable Call Option Closing, together with all NEP Common Units issued in all prior exercises of the Call Option:
(A) shall be no more than twenty-two and one half percent (22.5%) of the total number of outstanding NEP Common Units on a Fully Diluted Basis (including any NEP Common Units to be issued at the applicable Call Option Closing); and
(B) shall not exceed the product of (x) ten (10), multiplied by (y) the average daily trading volume of NEP Common Units on the applicable National Securities Exchange for the 30-day period ending on the day prior to the date of the Call Option Notice; and
(vi) on such Call Option Closing Date, there being no Call Option Cash Shortfall.
(f) NEP Member may pay any Call Option Purchase Price, at its option (subject to Section 7.02(e) above), in either cash, NEP Common Units, or a combination of cash and NEP Common Units; provided, however, that the holder of Class B Units to be purchased shall be entitled to require, by written notice delivered to NEP Member not less than two (2) Business Days prior to the applicable Call Option Closing Date, that up to thirty percent (30%) of the Call Option Purchase Price payable at such Call Option Closing consist of cash (the "“Call Option Cash Consideration”). Any NEP Common Units to be issued as payment of (or partial payment of) any Call Option Purchase Price will be issued at a price (the “Issuance Price"”) by delivering specified in the applicable Call Option Notice, which Issuance Price shall be the lesser of (i) the 10-day VWAP on the date of the Call Option Notice and (ii) the listed price of a NEP Common Unit as of the end of trading on the date of the Call Option Notice. If any portion of the Call Option Purchase Price is to the Purchasers a written notice specifying be paid in cash, then (i) the number of Conversion Shares that are subject NEP Common Units to the Call Option, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which be issued at the Call Option Closing shall be exercised reduced (but not below zero) by a number of NEP Common Units equal to the "Call Exercise Date"). Commencing on quotient (rounded down to the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Date, the Call Price shall be increased nearest whole number) obtained by one percent dividing (1%) per month.
(b) On the Call Exercise Date (iA) the Purchasers shall deliver to applicable Clawback Value by (B) the Company Issuance Price used in the Note, properly endorsed, representing the Note subject to calculation of the Call Option Purchase Price; and (ii) the Company shall deliver to the Purchasersextent there is any Remaining Clawback Value, then the Call Option Cash Consideration shall be reduced by an amount equal to the Remaining Clawback Value; provided, that notwithstanding anything herein to the contrary, in immediately available funds, no event shall (x) the applicable Call Price.
(c) The aggregate number of NEP Common Units so reduced across all Call Option provisions described in this Section 2 shall at all times be subject Closings pursuant to the foregoing clause (i) multiplied by the prior Conversion Rights of the Purchasers and (ii) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time of the Call Notice and on the Call Exercise Date.applicable
Appears in 1 contract
Sources: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Call Option. (a) The Company At any time, and from time to time, on or after December 15, 2027, but prior to December 15, 2032, NEP Member shall have the right, but not the obligation, to acquire, subject to the limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the applicable Acquisition Date of such Class B Unit to the Call Option Closing Date, of six and nine hundred thirty-one thousandths percent (6.931%) (the “Call Option Purchase Price”), upon the terms and conditions set forth in this Section 7.02 (the “Call Option”). NEP Member may not assign its right to purchase the outstanding Class B Units pursuant to this Section 7.02 to any Person other than NEP or a Subsidiary thereof; provided, however, that, in the event of any such assignment, NEP Member and NEP shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Call Option.
(b) To exercise the Call Option, NEP Member shall deliver to the Class B Members written notice of such exercise (the “Call Option Notice”) containing (i) the date (the “Call Option Closing Date”) on which the Call Option is to be consummated (the “Call Option Closing”), (ii) the number of Class B Units to be purchased, (iii) the Call Option Purchase Price per Class B Unit, and (iv) the form of consideration to be used to pay the Call Option Purchase Price, which shall be either cash, Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Call Option Closing Date, the issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Call Option Closing Date, the issuance of NEP Common Units), subject to the other requirements of this Section 7.02, and the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that NEP Member may issue a maximum of one (1) Call Option Notice in any calendar quarter. The Call Option Notice shall be delivered to the Class B Members at least five (5) calendar days, but not more than ten (10) Business Days, in advance of the Call Option Closing Date. Delivery of the initial Call Option Notice may be made prior to the first date on which NEP Member is permitted to exercise the Call Option in accordance with the preceding sentence (but for the avoidance of doubt, no Call Option Closing shall occur prior to December 15, 2027). If the consideration to be used to pay the Call Option Purchase Price, as set forth in the Call Option Notice, includes Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Call Option Closing Date, the issuance of NEP Common Units), then the applicable Call Option Notice may not be delivered, nor may any Call Option Closing be consummated, within fourteen (14) calendar days before any date on which NEP publicly announces its earnings for any Quarter or Fiscal Year.
(c) The following restrictions shall apply to each exercise of the Call Option:
(i) no Call Option may be exercised, and no Call Option Notice may be issued other than for a number of Class B Units that is five percent (5%) (or any integral multiple of five percent (5%)) of the total number of Class B Units (excluding outstanding Supplemental Class B Units) outstanding on the date of the applicable Call 92 Option Notice, unless such exercise of the Call Option is for the purchase of all remaining Class B Units not held by NEP Class B Parties;
(ii) the number of Class B Units purchased pursuant to the exercise of the Call Option during any calendar quarter shall not exceed twenty-five percent (25%) of the total number of Class B Units (excluding outstanding Supplemental Class B Units) outstanding on the date of the applicable Call Option Notice; provided, however, that the restriction set forth in this clause (ii) shall terminate on December 15, 2031;
(iii) the Class B Units purchased directly from each Class B Member or indirectly through a Blocker Merger pursuant to any exercise of the Call Option shall consist of a Proportionate Class B Allocation of such Class B Member’s or Blocker’s Class B Units;
(iv) if Investor delivers notice to NEP Member of Investor’s intent for NEP Member (or its nominee) to purchase Blocker Interests in connection with such Call Option pursuant to a Blocker Merger in accordance with Section 7.02(n), then Investor shall take such actions as are necessary to ensure that the number of Class B Units to be purchased indirectly through a Blocker Merger pursuant to such Call Option shall equal the exact number of Class B Units directly or indirectly owned by any one Blocker or the exact number of Class B Units directly or indirectly owned, in the aggregate, by any two or more Blockers (such that the acquisition of Blocker Interests through such Blocker Merger pursuant to such Call Option provides NEP Member (or its nominee) the indirect ownership, through the surviving Blocker of such Blocker Merger, of the number of Class B Units set forth in such Call Option Notice, less the number of Class B Units that Investor has elected for the NEP Member (or its nominee) to purchase directly in connection with such Call Option); and
(v) the aggregate number of Class B Units acquired in any Call Option shall, cumulatively when taken together with all Class B Units purchased in all prior exercises of the Call Option, be no more than:
(A) from December 15, 2027, but prior to December 15, 2028, twenty percent (20%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units);
(B) from December 15, 2028, but prior to December 15, 2029, forty percent (40%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units);
(C) from December 15, 2029, but prior to December 15, 2030, sixty percent (60%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units);
(D) from December 15, 2030, but prior to December 15, 2031, eighty percent (80%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units); and
(E) from December 15, 2031, but prior to December 15, 2032, one hundred percent (100%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units).
(d) Non-Voting NEP Common Units (or, if requested pursuant to Section 7.02(b), NEP Common Units) may be used for payment of the Call Option Purchase Price at any Call Option Closing Date subject to the following limitations and the satisfaction of each of the following conditions as of the applicable Call Option Closing Date:
(i) the NEP Common Units are listed or admitted to trading on the Nasdaq Stock Market or the New York Stock Exchange;
(ii) (A) the Registration Rights Agreement is in effect with respect to the NEP Common Units to be issued as part of the Call Option Purchase Price (or into which the Non-Voting NEP Common Units are convertible), subject to and in accordance with the terms of the NEP Limited Partnership Agreement, and (B) NEP shall use commercially reasonable efforts to file, as promptly as practicable following the delivery of the applicable Call Option Notice, a registration statement with the Commission registering the resale of the NEP Common Units to be issued at the Call Option Closing as part of the Call Option Purchase Price (or into which the Non-Voting NEP Common Units issued at such Call Option Closing are convertible); and
(iii) on such Call Option Closing Date, there shall be no Call Option Cash Shortfall.
(e) NEP Member may pay any Call Option Purchase Price, at its option (subject to Section 7.02(d) above), in either cash, Non-Voting NEP Common Units (or, if requested pursuant to Section 7.02(b), NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or, if requested pursuant to Section 7.02(b), NEP Common Units).
(f) Any NEP Common Units or Non-Voting NEP Common Units to be issued as payment of (or partial payment of) any Call Option Purchase Price will be issued at a price (the “Issuance Price”) specified in the applicable Call Option Notice, which Issuance Price shall be the lesser of (i) the 10-day VWAP on the Trading Day immediately preceding the date of the Call Option Notice and (ii) the listed price of a NEP Common Unit as of the end of trading on the Trading Day immediately preceding the date of the Call Option Notice.
(g) On each Call Option Closing Date, (i) the Class B Members will convey all right, title, and interest in and to the applicable Class B Units, free of all Encumbrances (other than restrictions on transfer arising under this Agreement and under applicable securities Laws), to NEP Member or its nominee; (ii) NEP Member or its nominee will pay the cash portion of the Call Option Purchase Price to the Class B Members (or their nominee(s)) by wire transfer of immediately available funds; and (iii) NEP shall satisfy the remaining portion of the Call Option Purchase Price by issuing Non-Voting NEP Common Units (or, if requested pursuant to Section 7.02(b), NEP Common Units) to the Class B Members, and, in connection therewith, NEP shall instruct, and shall use its commercially reasonable efforts to cause, its Transfer Agent to record the issuance of such NEP Common Units or Non-Voting NEP Common Units, as the case may be, to such Class B Members (or their nominee(s)). No fractional NEP Common Units 94 or Non-Voting NEP Common Units, as the case may be, will be issued. The Members agree that each Call Option Closing shall be subject to the receipt of all applicable Required Governmental Authorizations. In the event any such Required Governmental Authorizations shall not have been obtained by the date that is otherwise scheduled to be the Call Option Closing Date, then such Call Option Closing Date shall automatically be delayed until such date as all such Required Governmental Authorizations have been obtained and, for the avoidance of doubt, the Call Option Purchase Price set forth in the Call Option Notice shall be calculated from the applicable Acquisition Date of the Class B Units to be purchased until the date of the actual Call Option Closing.
(h) Each Class B Member hereby agrees that, in connection with each Call Option Closing, such Class B Member (or its Affiliates) shall use reasonable best efforts to obtain Qualifying Financing and shall borrow an amount thereunder that, together with the aggregate amount of any Call Option Cash Consideration, if any, to be paid to such Class B Member and all other cash on hand and all Cash Equivalents of such Class B Member, provides such Class B Member sufficient cash to repay the portion of such Class B Member’s then outstanding Indebtedness under any Class B Permitted Loan Financing required to be repaid as a result of such exercise of the Call Option (including the net amount of any termination payments and unpaid amounts under any Permitted Hedging Transactions and any other breakage costs, termination fees, and other payments due and payable under such Class B Permitted Loan Financing in connection with such repayment), and to cause the release of all Encumbrances (other than restrictions on transfer arising under this Agreement and under applicable securities Laws) on the Class B Units being acquired pursuant to the exercise of such Call Option. To the extent that the net proceeds from the Qualifying Financing, together with the aggregate Call Option Cash Consideration to be paid to such Class B Member (net of any deductions or withholdings therefrom pursuant to Section 7.02(m)) and all other cash on hand and Cash Equivalents of the applicable Class B Member, are insufficient to repay in full the portion of Indebtedness under such Class B Permitted Loan Financing that is required to be repaid (including the net amount of any termination payments and unpaid amounts under any Permitted Hedging Transactions and any other breakage costs, termination fees and other payments due and payable under such Class B Permitted Loan Financing in connection with such repayment) as a result of the exercise of such Call Option (such deficiency, a “Call Option Cash Shortfall”), then such Class B Member shall use reasonable best efforts to remedy such Call Option Cash Shortfall as promptly as practicable by obtaining Qualifying Financing (or additional Qualifying Financing) in an amount required to remedy the Call Option Cash Shortfall. The Members agree that, if any Class B Permitted Loan Financing is outstanding at such time, each Call Option Closing shall be subject to there being no Call Option Cash Shortfall. If there is a Call Option Cash Shortfall and the applicable Class B Members are unable, using their respective reasonable best efforts to, secure Qualifying Financing or to refinance the existing Qualifying Financing with another Qualifying Financing, in an amount sufficient to remedy the Call Option Cash Shortfall by the Call Option Closing Date set forth in the applicable Call Option Notice (the “Scheduled Call Option Buyout Date”), then the applicable Call Option Closing shall automatically be delayed for a period (a “Call Option Delay Period”) commencing on the Scheduled Call Option Buyout Date and ending upon the earliest to occur of (i) the Call Option Closing, (ii) NEP Member’s delivery of written revocation of the applicable Call Option Notice to the Class B Member Representative at any time after the Scheduled Call Option Buyout Date, and (iii) the date that is twenty (20) Business Days after the Scheduled Call Option Buyout Date. During any such Call Option Delay Period, the Class B Members shall use their respective 95 reasonable best efforts to secure Qualifying Financing, or to refinance the existing Qualifying Financing with another Qualifying Financing, in an amount that is sufficient to remedy the Call Option Cash Shortfall; provided, however, that, at any time and from time to time commencing during such Call Option Delay Period, NEP Member shall be entitled to modify the proportions of cash and Non-Voting NEP Common Units (or NEP Common Units, if requested pursuant to Section 7.02(b)) to be used to pay the Call Option Purchase Price at the applicable Call Option Closing, upon notice thereof delivered to the Class B Member Representative on July 1or after the Scheduled Call Option Buyout Date. If, 1999 following the Scheduled Call Option Buyout Date, the Class B Members are able, using their respective reasonable best efforts, to purchase from any holder remedy the Call Option Cash Shortfall, then (A) the Class B Member Representative shall promptly deliver written notice thereof to NEP Member, (B) the applicable Call Option Closing shall occur as promptly thereafter as practicable, and (C) at the applicable Call Option Closing, the amount of the Note Call Option Purchase Price and the Issuance Price for Non-Voting NEP Common Units (the "Call Option"or NEP Common Units, if requested pursuant to Section 7.02(b)) the Note at a call price of one hundred and sixteent & 6/10 percent to be issued as payment (116.6%or partial payment) of the principal amountapplicable Call Option Purchase Price shall be the same as is set forth in the original Call Option Notice; provided that, plus accrued and unpaid interest thereon (if the "Class B Members are unable to remedy the applicable Call Price") Option Cash Shortfall by delivering the expiration of the applicable Call Option Delay Period, then the obligation of the Class B Members to use their respective reasonable best efforts to secure Qualifying Financing, or to refinance the Purchasers a written notice specifying existing Qualifying Financing, in an amount sufficient to remedy the Call Option Cash Shortfall shall cease concurrently with such expiration of the applicable Call Option Delay Period.
(i) the number Following consummation of Conversion Shares that are subject to the Call Option, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which the Call Option shall be exercised Closing pursuant to which all of a Class B Member’s Class B Units are acquired by NEP Member (or its nominee), the "Call Exercise Date"). Commencing on Managing Member will amend this Agreement to reflect the first day withdrawal of such Class B Member and the transfer of the month from August 1, 1999 and on each month thereafter until the Maturity Date, the Call Price shall be increased by one percent (1%) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver to the Company the Note, properly endorsed, representing the Note subject to the Call Option and (ii) the Company shall deliver to the Purchasers, in immediately available funds, the applicable Call Price.
(c) The Call Option provisions described in this Section 2 shall at all times be subject to (i) the prior Conversion Rights Class B Units effective as of the Purchasers and (ii) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time of the Call Notice and on the Call Exercise Date.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Nextera Energy Partners, Lp)
Call Option. (a) The Company holder of shares shall have the right, at any time and from time right (the “Call Option”) to time commencing on July 1, 1999 to purchase from any holder buy all or some of the Note of the Shares (the "“Call Option"Shares”) in the Note at a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying following manner:
(i) the number of Conversion Shares that are subject to the Call Option, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which the The Call Option shall be exercised by the holder of the shares through a written notice (the "“Call Exercise Date"Notice”) specifying their wish to exercise the Call Option at the fair market price of the Call Shares (for purposes of this Section, the “Call Price”). Commencing on the first day Upon receipt of the month from August 1, 1999 and on each month thereafter until the Maturity Datenotice, the Recipient may exercise the option to buy the Call Price shall be increased by one percent (1%) per monthShares.
(b) On the Call Exercise Date (i) the Purchasers shall deliver to the Company the Note, properly endorsed, representing the Note subject to the Call Option and (ii) the Company The Recipient shall deliver to the Purchasers, in immediately available funds, the applicable Call Price.
(c) The Call Option provisions described in this Section 2 shall at all times be subject to (i) the prior Conversion Rights within 60 days of the Purchasers and (ii) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time receipt of the Call Notice and on shall intimate to the holder of the Shares offered for the Cali Option, about their acceptance or denial of the Call Exercise DateOption.
(iii) The completion of the sale and purchase pursuant to the Call Notice shall take place not later than sixty (60) days after the date on which reply to Call Notice as per clause (ii) is received by the holder of Shares. In the event the other Party fails to reply to the Put or Call Notice as specified in Clause (i) and (iii), then the other Party shall waive its right to exercise right to first refusal as per clause 7. In case of simultaneous Put or Call options the price of the Higher Option shall prevail. In case, if the other Parties do not exercise their right under the abovementioned Options then the Shareholders making the put option will name prospective persons who are willing to buy the shares the same shall be approved by the remaining shareholders, unless compelling and legitimate reasons are given in writing within 15 (fifteen) days of receipt of such names, If the remaining shareholders fait to respond within 15 (fifteen) days (unless a mutually agreed extension is granted) deemed that the remaining shareholders have approved the prospective person.
Appears in 1 contract
Call Option. (a) The Company At any time, and from time to time, on or after December 11, 2022, but prior to June 11, 2026, NEP Member shall have the right, but not the obligation, to acquire, subject to the limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the Effective Date to the Call Option Closing Date (the “Call Option Purchase Price”), upon the terms and conditions set forth in this Section 7.02 (the “Call Option”), of (i) eight and thirty-two hundredths of a percent (8.32%) on each Class B Unit acquired upon the exercise of such Call Option, for any time Call Option Closing Date that occurs prior to the Flip Date, or (ii) nine and thirty-two hundredths of a percent (9.32%) on each Class B Unit acquired upon the exercise of such Call Option, for any Call Option Closing Date that occurs on or after the Flip Date (provided, however, that the Internal Rate of Return set forth in this clause (ii) shall be measured only from time the third (3rd) anniversary of the Effective Date to time commencing on July 1the applicable Call Option Closing Date, 1999 and, with respect to the period from the Effective Date to the third (3rd) anniversary of the Effective Date, the Internal Rate of Return shall be as set forth in clause (i)). NEP Member may not assign its right to purchase from the outstanding Class B Units pursuant to this Section 7.02 to any holder Person other than NEP or a subsidiary thereof; provided, however, that, in the event of any such assignment, NEP Member and NEP shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Note Call Option.
(b) To exercise the Call Option, NEP Member shall deliver to the Class B Members written notice of such exercise (the "“Call Option"Option Notice”) following the Note at end of trading on a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying Trading Day containing (i) the number of Conversion Shares that are subject to date (the “Call Option Closing Date”) on which the Call OptionOption is to be consummated (the “Call Option Closing”), (ii) the Call Pricenumber of Class B Units to be purchased, and (iii) the dateCall Option Purchase Price per Class B Unit, not earlier than twenty and (20iv) Trading Days and not later than thirty (30) days, on which the form of consideration to be used to pay the Call Option Purchase Price, which shall be exercised either cash, Non-Voting NEP Common Units (or NEP Common Units if the "holder of Class B Units to be purchased requests in writing, not less than three (3) Business Days prior to the applicable Call Exercise Date"). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Option Closing Date, the Call Price shall issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be increased by one percent purchased requests in writing, not less than three (1%3) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver Business Days prior to the Company applicable Call Option Closing Date, the Noteissuance of NEP Common Units), properly endorsed, representing the Note subject to the other requirements of this Section 7.02, and the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that NEP Member may issue a maximum of (A) three (3) Call Option Notices in any calendar year and (iiB) the Company one (1) Call Option Notice in any calendar quarter. The Call Option Notice shall deliver be delivered to the PurchasersClass B Members at least seven (7) Business Days and no more than ten (10) Business Days in advance of the Call Option Closing Date and shall be irrevocable. Delivery of the initial Call Option Notice may be made prior to the first date on which NEP Member is permitted to exercise the Call Option in accordance with the preceding sentence (but for the avoidance of doubt, in immediately available fundsno Call Option Closing shall occur prior to December 11, the 2022). No Call Option Notice may be delivered, nor may any Call Option Closing be consummated, within fourteen (14) calendar days before any date on which NEP publicly announces its earnings for any Quarter or Fiscal Year (or any other expected public announcement of earnings or other “blackout period” under NEP Member’s trading policies that are applicable Call Priceto all holders of NEP Common Units).
(c) The following restrictions shall apply to each exercise of the Call Option:
(i) no Call Option provisions described may be exercised, and no Call Option Notice may be issued, (i) for a number of Class B Units that is less than eight percent (8%) of the Class B Units outstanding on the date of the applicable Call Option Notice; and (ii) if, and to the extent that, as a result of such exercise, on the applicable Call Option Closing Date, the holders of Class B Units other than the NEP Class B Parties would own less than sixteen percent (16%) of the Class B Units then outstanding, unless, in the case of this clause (ii), the exercise of such Call Option is for the purchase of all remaining Class B Units not held by the NEP Class B Parties; and
(ii) the aggregate number of Class B Units purchased in any Call Option shall, cumulatively when taken together with all Class B Units purchased in all prior exercises of the Call Option, shall be no more than:
(A) from December 11, 2022, but prior to June 11, 2023, ten percent (10%) of the total number of outstanding Class B Units;
(B) from June 11, 2023, but prior to December 11, 2023, twenty-five percent (25%) of the total number of outstanding Class B Units;
(C) from December 11, 2023, but prior to June 11, 2024, fifty percent (50%) of the total number of outstanding Class B Units;
(D) from June 11, 2024, but prior to December 11, 2024, seventy-five percent (75%) of the total number of outstanding Class B Units; and
(E) from December 11, 2024, but prior to June 11, 2026, one hundred percent (100%) of the total number of outstanding Class B Units.
(d) Non-Voting NEP Common Units (or, if requested pursuant to Section 2 shall 7.02(b), NEP Common Units) may be used for payment of the Call Option Purchase Price at all times be any Call Option Closing Date subject to the following limitations and the satisfaction of each of the following conditions as of the applicable Call Option Closing Date:
(i) the prior Conversion NEP Common Units are listed or admitted to trading on the Nasdaq Stock Market or the New York Stock Exchange;
(ii) the Registration Rights Agreement is in effect with respect to the NEP Common Units into which the Non-Voting NEP Common Units are convertible, subject to and in accordance with the terms of the Purchasers NEP Limited Partnership Agreement;
(iii) NEP shall have filed a registration statement with the SEC registering the resale of the NEP Common Units into which the Non-Voting NEP Common Units issued at such Call Option Closing are convertible, and such registration shall have been declared effective by the SEC, and no stop order shall have been issued with respect thereto;
(iv) (A) none of NEP or its Affiliates has knowledge of previously undisclosed material events or developments that NEP or such Affiliate would be obligated to disclose publicly, under applicable Law or the rules of the National Securities Exchange on which the NEP Common Units are listed, if NEP or such Affiliate were offering and selling NEP Common Units (or other publicly traded securities), the disclosure of which would reasonably be expected to negatively affect the trading price of NEP Common Units on the applicable National Securities Exchange; and (B) NEP (or its Affiliates) shall have publicly disclosed any material events or developments that would reasonably be expected to negatively affect the trading price of NEP Common Units on the applicable National Securities Exchange at least one (1) full Trading Day (on which NEP Common Units traded on the applicable National Securities Exchange without stop or interruption) prior to the issuance of any Call Option Notice;
(v) in any exercise of the Call Option, the aggregate number of NEP Common Units and Non-Voting NEP Common Units that will be issued to holders of Class B Units at the applicable Call Option Closing, together with all NEP Common Units and Non-Voting NEP Common Units issued in all prior exercises of the Call Option, shall be no more than twenty-two and one half percent (22.5%) of the total number of outstanding NEP Common Units on a Fully Diluted Basis (including any NEP Common Units to be issued at the applicable Call Option Closing); and
(vi) on such Call Option Closing Date, there being no Call Option Cash Shortfall.
(e) NEP Member may pay any Call Option Purchase Price, at its option (subject to Section 7.02(d) above), in either cash, Non-Voting NEP Common Units (or, if requested pursuant to Section 7.02(b), NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or, if requested pursuant to Section 7.02(b), NEP Common Units); provided, however, that the holder of Class B Units to be purchased shall be entitled to require, by written notice delivered to NEP Member not less than three (3) Business Days prior to the applicable Call Option Closing Date, that up to thirty percent (30%) of the Call Option Purchase Price payable at such Call Option Closing consist of cash (the “Call Option Cash Consideration”). Any NEP Common Units or Non-Voting NEP Common Units to be issued as payment of (or partial payment of) any Call Option Purchase Price will be issued at a price (the “Issuance Price”) specified in the applicable Call Option Notice, which Issuance Price shall be the lesser of (i) the 10-day VWAP on the date of the Call Option Notice and (ii) the shares listed price of a NEP Common Stock underlying Unit as of the Notes must end of trading on the date of the Call Option Notice.
(f) On each Call Option Closing Date, (i) the Class B Members will convey all right, title, and interest in and to the applicable Class B Units, free of all Encumbrances (other than those created by this Agreement or securities Laws), to NEP Member or its nominee; (ii) NEP Member or its nominee will pay the cash portion of the Call Option Purchase Price to the Class B Members (or their nominee(s)) by wire transfer of immediately available funds; and (iii) NEP shall satisfy the remaining portion of the Call Option Purchase Price by issuing Non-Voting NEP Common Units (or, if requested pursuant to Section 7.02(b), NEP Common Units) to the Class B Members, and, in connection therewith, NEP shall instruct, and shall use its commercially reasonable efforts to cause, its Transfer Agent to record the issuance of such NEP Common Units or Non-Voting NEP Common Units, as the case may be, to such Class B Members (or the Margin Loan Borrower as their nominee or such other nominee(s)); provided, however, that the Call Option Closing Date may be covered delayed by written notice to NEP Member from the Class B Member Representative (on behalf of the Class B Members), for a period of up to, but not exceeding, seven (7) Business Days solely to the extent there is an effective resale registration statement Issuer Trading Suspension (as defined in the Margin Loan Agreement) or a Facility Adjustment Event (as defined in the Margin Loan Agreement) that exists or will exist on such Call Option Closing Date. No fractional NEP Common Units or Non-Voting NEP Common Units, as the case may be, will be issued. The Members agree that each Call Option Closing shall be subject to the receipt of all applicable Required Governmental Authorizations. In the event any such Required Governmental Authorizations shall not have been obtained by the date that is otherwise scheduled to be the Call Option Closing Date, then such Call Option Closing Date shall automatically be delayed until such date as all such Required Governmental Authorizations have been obtained and, for the avoidance of doubt, the Call Option Purchase Price set forth in the Call Option Notice shall be calculated from the Effective Date until the date of the actual Call Option Closing.
(g) Each Class B Member hereby agrees that, in connection with the Call Option Closing, such Class B Member (or its Affiliates) shall borrow under the Margin Loan Agreement the maximum amount available thereunder (subject to the terms and conditions of the Margin Loan, including, for the avoidance of doubt, the LTV Initial Level), and shall use such borrowings, together with any Call Option Cash Consideration and all other cash on hand and all Cash Equivalents of the Class B Member, to repay, all of such Class B Member’s then outstanding Indebtedness under the Credit Agreement (including any breakage costs, termination fees, or other payments that would be due or payable thereunder) and all other Indebtedness required to be repaid as a result of the exercise of such Call Option, in each case, pursuant to which the Class B Units being acquired pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 exercise of such Call Option are Encumbered (Vitech Americaother than Indebtedness incurred pursuant to the Margin Loan Agreement (which, Inc.for the avoidance of doubt, shall not be secured by Encumbrances on any Class B Units)). To the extent it is determined that the net proceeds from the Margin Loan Agreement, together with any Call Option Cash Consideration (net of any deductions or withholdings therefrom pursuant to Section 7.02(l)) terms and any other cash on hand and Cash Equivalents of the Securities Purchase Class B Member, are insufficient to repay in full all Indebtedness of the Class B Member and any other Indebtedness pursuant to which such Class B Units are Encumbered required to be repaid as a result of the exercise of such Call Option, plus the amounts required to be paid by the Class B Member constituting amounts owed by the Class B Member as termination payments and unpaid amounts under any swap, cap, forward, future, or other derivative transaction entered into in connection with the hedging of interest rates under the Credit Agreement, and minus amounts required to be paid to the Class B Member constituting amounts owed by the counterparty under any such swap, cap, forward, future, or other derivative transaction as termination payments and unpaid amounts under any such swap, cap, forward, future, or other derivative transaction (such deficiency, a “Call Option Cash Shortfall”), then the Class B Members shall use reasonable best efforts to obtain Qualifying Financing in an amount required to remedy the Call Option Cash Shortfall as promptly as practicable. The Members agree that, until the Credit Agreement Payment In Full, each Call Option Closing shall be subject to there being no Call Option Cash Shortfall. If there is a Call Option Cash Shortfall and the applicable Class B Members are unable, using reasonable best efforts, to secure Qualifying Financing or refinance the existing Margin Loan with a Qualifying Financing or otherwise remedy the Call Option Cash Shortfall by the Call Option Closing Date, then the applicable Call Option Closing shall automatically be delayed for a period of at least five (5) Business Days until such date as the Class B Members obtain such additional or replacement financing to remedy the Call Option Cash Shortfall or there otherwise would no longer be a Call Option Cash Shortfall associated with the exercise of such Call Option; provided, however, that at the time applicable Call Option Closing (if any) following the end of such delay, (i) the Call Option Purchase Price shall be calculated from the Effective Date to the date on which such Call Option Closing actually occurs, and (ii) the Issuance Price of the NEP Common Units and Non-Voting NEP Common Units, if any, to be issued as payment (or partial payment) of the applicable Call Option Purchase Price shall be the price set forth in the original Call Option Notice. If the Call Option Closing is delayed for more than ten (10) Business Days in connection with the preceding sentence, then the NEP Member and applicable Class B Members shall work in good faith to remedy the applicable Call Option Cash Shortfall (provided that the foregoing shall not require the Class B Members to take any actions to remedy such Call Option Cash Shortfall other than seeking additional or replacement financing in accordance with this Section 7.02(g)). If the NEP Member and Class B Members are unable to remedy the applicable Call Option Cash Shortfall within twenty (20) Business Days thereafter, then the applicable Call Option Notice shall be deemed revoked. If the Class B Members are able to obtain Qualifying Financing in an amount sufficient to remedy the Call Option Cash Shortfall, then (1) the Class B Member Representative shall promptly deliver written notice thereof to NEP Member, and (2) the Call Option Closing shall occur as promptly thereafter as practicable.
(h) Following consummation of the Call Notice and on the Call Exercise Date.Option pursuan
Appears in 1 contract
Sources: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Call Option. (a) The Company At any time, and from time to time, on or after [●], 2025,7 but prior to [●], 2030,8 NEP Member shall have the right, but not the obligation, to acquire, subject to the limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at any time a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the applicable Acquisition Date of such Class B Unit to the Call Option Closing Date, of six and from time to time commencing on July 1three quarters percent (6.75%) (the “Call Option Purchase Price”), 1999 upon the terms and conditions set forth in this Section 7.02 (the “Call Option”). NEP Member may not assign its right to purchase from the outstanding Class B Units pursuant to this Section 7.02 to any holder Person other than NEP or a Subsidiary thereof; provided, however, that, in the event of any such assignment, NEP Member and NEP 7 NTD – To be the date that is the [fifth (5th)] anniversary of the Note Effective Date. 8 NTD – To be the date that is the [Flip Date]. 868227.24-WILSR01A - MSW shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Call Option.
(b) To exercise the Call Option, NEP Member shall deliver to the Class B Members written notice of such exercise (the "“Call Option"Option Notice”) following the Note at end of trading on a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying Trading Day containing (i) the number of Conversion Shares that are subject to date (the “Call Option Closing Date”) on which the Call OptionOption is to be consummated (the “Call Option Closing”), (ii) the Call Pricenumber of Class B Units to be purchased, and (iii) the dateCall Option Purchase Price per Class B Unit, not earlier than twenty and (20iv) Trading Days and not later than thirty (30) days, on which the form of consideration to be used to pay the Call Option Purchase Price, which shall be exercised either cash, Non-Voting NEP Common Units (or NEP Common Units if the "holder of Class B Units to be purchased requests in writing, not less than three (3) Business Days prior to the applicable Call Exercise Date"). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Option Closing Date, the Call Price shall issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be increased by one percent purchased requests in writing, not less than three (1%3) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver Business Days prior to the Company applicable Call Option Closing Date, the Noteissuance of NEP Common Units), properly endorsed, representing the Note subject to the other requirements of this Section 7.02, and the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that NEP Member may issue a maximum of (A) three (3) Call Option Notices in any calendar year and (iiB) the Company one (1) Call Option Notice in any calendar quarter. The Call Option Notice shall deliver be delivered to the PurchasersClass B Members at least seven (7) Business Days and no more than ten (10) Business Days in advance of the Call Option Closing Date and shall be irrevocable. Delivery of the initial Call Option Notice may be made prior to the first date on which NEP Member is permitted to exercise the Call Option in accordance with the preceding sentence (but for the avoidance of doubt, in immediately available fundsno Call Option Closing shall occur prior to [●], the 20259). No Call Option Notice may be delivered, nor may any Call Option Closing be consummated, within fourteen (14) calendar days before any date on which NEP publicly announces its earnings for any Quarter or Fiscal Year (or any other expected public announcement of earnings or other “blackout period” under NEP Member’s trading policies that are applicable Call Priceto all holders of NEP Common Units).
(c) The following restrictions shall apply to each exercise of the Call Option:
(i) no Call Option provisions described may be exercised, and no Call Option Notice may be issued, (A) for a number of Class B Units that is less than five percent (5%) of the Class B Units outstanding on the date of the applicable Call Option Notice; and (B) if, and to the extent that, as a result of such exercise, on the applicable Call Option Closing Date, the holders of Class B Units other than the NEP Class B Parties would own less than fifteen percent (15%) of the Class B Units then outstanding, unless, in the case of this clause (B), the exercise of such Call Option is for the purchase of all remaining Class B Units not held by the NEP Class B Parties;
(ii) the number of Class B Units purchased pursuant to the exercise of one or more Call Options during (A) any calendar quarter shall not exceed twenty-five percent (25%) of the total number of outstanding Class B Units; and (B) any calendar year shall not exceed fifty percent (50%) of the total number of outstanding Class B Units;
(iii) if NEP Member (or its nominee) is required to purchase Blocker Interests in connection with such Call Option in accordance with Section 2 7.02(n), then the 9 NTD – To be the date that is the [fifth (5th)] anniversary of the Effective Date. 868227.24-WILSR01A - MSW number of Class B Units purchased pursuant to such Call Option shall equal the exact number of Class B Units directly or indirectly owned by any one Blocker as set forth on Schedule 3 or the exact number of Class B Units directly or indirectly owned, in the aggregate, by any two or more Blockers as set forth on Schedule 3 (such that the purchase of Blocker Interests pursuant to such Call Option provides NEP Member (or its nominee) the indirect ownership through such Blocker(s) of the number of Class B Units set forth in such Call Option Notice); and
(iv) the aggregate number of Class B Units purchased in any Call Option shall, cumulatively when taken together with all Class B Units purchased in all prior exercises of the Call Option, be no more than:
(A) from [●], 2025,10 but prior to [●], 2026,11 twenty percent (20%) of the total number of outstanding Class B Units;
(B) from [●], 2026,12 but prior to [●], 2027,13 forty percent (40%) of the total number of outstanding Class B Units;
(C) from [●], 2027,14 but prior to [●], 2028,15 sixty percent (60%) of the total number of outstanding Class B Units;
(D) from [●], 2028,16 but prior to [●], 2029,17 eighty percent (80%) of the total number of outstanding Class B Units; and
(E) from [●], 2029,18 but prior to [●], 2030,19 one hundred percent (100%) of the total number of outstanding Class B Units.
(d) Non-Voting NEP Common Units (or, if requested pursuant to Section 7.02(b), NEP Common Units) may be used for payment of the Call Option Purchase Price at all times be any Call Option Closing Date subject to the following limitations and the satisfaction of each of the following conditions as of the applicable Call Option Closing Date:
(i) the prior Conversion Rights of NEP Common Units are listed or admitted to trading on the Purchasers and Nasdaq Stock Market or the New York Stock Exchange;
(ii) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant Registration Rights Agreement is in effect with respect to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech AmericaNEP Common Units into which the Non-Voting NEP Common Units are convertible, Inc.) subject to and in accordance with the terms of the Securities Purchase Agreement at NEP Limited Partnership Agreement; 10 NTD – To be the time date that is the [fifth (5th)] anniversary of the Call Notice and on Effective Date. 11 NTD – To be the Call Exercise date that is the [sixth (6th)] anniversary of the Effective Date. 12 NTD – To be the date that is the [sixth (6th)] anniversary of the Effective Date. 13 NTD – To be the date that is the [seventh (7th)] anniversary of the Effective Date.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (NextEra Energy Partners, LP)
Call Option. (a) The Company At any time, and from time to time, on or after [●], 2026,7 but prior to [●], 2031,8 NEP Member shall have the right, but not the obligation, to acquire, subject to the limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at any time a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the applicable Acquisition Date of such Class B Unit to the Call Option Closing Date, of [five and from time to time commencing on July 1five and sixty-one hundredths percent (5.61%)] (the “Call Option Purchase Price”), 1999 upon the terms and conditions set forth in this Section 7.02 (the “Call Option”). NEP Member may not assign its right to purchase from the outstanding Class B Units pursuant to this Section 7.02 to any holder Person other than NEP or a Subsidiary thereof; provided, however, that, in the event of any such assignment, NEP Member and NEP shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Note Call Option.
(b) To exercise the Call Option, NEP Member shall deliver to the Class B Members notice of such exercise (the "“Call Option"Option Notice”) the Note at a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying containing (i) the number of Conversion Shares that are subject to date (the “Call Option Closing Date”) on which the Call OptionOption is to be consummated (the “Call Option Closing”), (ii) the Call Pricenumber of Class B Units to be purchased, and (iii) the dateCall Option Purchase Price per Class B Unit, not earlier than twenty and (20iv) Trading Days and not later than thirty (30) days, on which the form of consideration to be used to pay the Call Option Purchase Price, which shall be exercised either cash, Non-Voting NEP Common Units (or NEP Common Units if the "holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Call Exercise Date"). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Option Closing Date, the Call Price shall issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be increased by one percent purchased requests in writing, not less than two (1%2) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver Business Days prior to the Company applicable Call Option Closing Date, the Noteissuance of NEP Common Units), properly endorsed, representing the Note subject to the other requirements of this Section 7.02, and the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that NEP Member may issue a maximum of one (1) Call Option and (ii) the Company Notice in any calendar quarter. The Call Option Notice shall deliver be delivered to the PurchasersClass B Members at least five (5) calendar days in advance of the Call Option Closing Date. Delivery of the initial Call Option Notice may be made prior to the first date on which NEP Member is permitted to exercise the Call Option in accordance with the preceding sentence (but for the avoidance of doubt, no Call Option Closing shall occur prior to [●], 20269). If the consideration to be used to pay the Call Option Purchase Price, as set forth in immediately available fundsthe Call Option Notice, includes Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Call PriceOption Closing Date, the issuance of NEP Common Units), then the applicable 7 NTD – To be the date that is the [fifth (5th)] anniversary of the Effective Date. 8 NTD – To be the date that is the [Flip Date]. 9 NTD – To be the date that is the [fifth (5th)] anniversary of the Effective Date. 896060.18-WILSR01A - MSW Call Option Notice may not be delivered, nor may any Call Option Closing be consummated, within fourteen (14) calendar days before any date on which NEP publicly announces its earnings for any Quarter or Fiscal Year (or any other “blackout period” under NEP Member’s trading policies that is applicable to all holders of NEP Common Units).
(c) The following restrictions shall apply to each exercise of the Call Option provisions described in this Section 2 shall at all times be subject to Option:
(i) the prior Conversion Rights no Call Option may be exercised, and no Call Option Notice may be issued other than for a number of Class B Units that is five percent (5%) (or any integral multiple of five percent (5%)) of the Purchasers and Class B Units outstanding on the date of the applicable Call Option Notice, unless such exercise of the Call Option is for the purchase of all remaining Class B Units not held by NEP Class B Parties;
(ii) the shares number of Common Stock underlying the Notes must be covered by an effective resale registration statement Class B Units purchased pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 exercise of one or more Call Options during any calendar quarter shall not exceed twenty-five percent (Vitech America, Inc.25%) terms of the Securities Purchase Agreement at total number of outstanding Class B Units as of the time date of the Call Notice and Option Notice; provided, however, that the restriction set forth in this clause (ii) shall terminate on [●], 2030;10
(iii) the Class B Units purchased from each Class B Member pursuant to any exercise of the Call Exercise Option shall consist of a Proportionate Class B Allocation of such Class B Member’s Class B Units;
(iv) if Investor delivers notice to NEP Member of Investor’s intent for NEP Member (or its nominee) to purchase Blocker Interests in connection with such Call Option in accordance with Section 7.02(n), then Investor shall take such actions as are necessary to ensure that the number of Class B Units purchased pursuant to such Call Option shall equal the exact number of Class B Units directly or indirectly owned by any one Blocker or the exact number of Class B Units directly or indirectly owned, in the aggregate, by any two or more Blockers (such that the purchase of Blocker Interests pursuant to such Call Option provides NEP Member (or its nominee) the indirect ownership through such Blocker(s) of the number of Class B Units set forth in such Call Option Notice); and
(v) the aggregate number of Class B Units purchased in any Call Option shall, cumulatively when taken together with all Class B Units purchased in all prior exercises of the Call Option, be no more than:
(A) from [●], 2026,11 but prior to [●], 2027,12 twenty percent (20%) of the total number of outstanding Class B Units; 10 NTD – To be the date that is one year prior to the Flip Date.. 11 NTD – To be the date that is the [fifth (5th)] anniversary of the Effective Date. 12 NTD – To be the date that is the [sixth (6th)] anniversary of the Effective Date. 896060.18-WILSR01A - MSW (B) from [●], 2027,13 but prior to [●], 2028,14 forty percent (40%) of the total number of outstanding Class B Units;
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Nextera Energy Partners, Lp)
Call Option. (a) The Company At all times during the Call Period, Zoom shall have the right, at provided that Zoom has not (i) sold, assigned or transferred any time of its interests under the Purchase Agreement, or (ii) failed to make and from time to time commencing on July 1Additional Capital Contribution under Section 4.09 above beyond any applicable cure period, 1999 to purchase from any holder the Non-Zoom Members, and the Non-Zoom Members shall be obligated to sell to Zoom, all, but not less than all, of the Note Non-Zoom Members' collective Units (free and clear of all liens, encumbrances, and the like), including, but not limited to, all of the Non-Zoom Members' right, title and interest in and to the Real Property, Leases, Tangible Personal Property, Intangible Personal Property, License Agreements and Earnest Money, under the Purchase ▇▇▇▇▇▇ent and the Second Amendment (the "Call OptionCall") ). If Zoom desires to exercise the Note at a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amountCall, plus accrued and unpaid interest thereon (the "Call Price") by delivering Zoom shall provide written notice to the Purchasers a written notice specifying (i) the number of Conversion Shares that are subject to the Call Option, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than Non-Zoom Members at least thirty (30) days, on which business days prior to the Call Option shall be exercised purchase date. In the event that the Call transaction has not closed by December 31, 2005 (the "Call Exercise Date"). Commencing on the first day other than as a result of a default of the month from August 1Non-Zoom Members), 1999 and on each month thereafter until the Maturity Date, the all of Zoom's Call Price rights shall be increased by one percent (1%) per monthexpire.
(b) On The purchase price for the Non-Zoom Members' interest (the "Call Exercise Date Option Price") shall be as follows:
(i) If the Purchasers shall deliver closing of the Call transaction occurs within one (1) year after the Option Effective Date, an amount equal to the sum of (A) the Purchase Price (less, if applicable, the Closing Credit), plus any Investment Capital Contributions made from time to time by the Non-Zoom Members to the Company, plus the Non-Zoom Members' collective pro rata share of any undistributed net Profits of the Company (the "Non-Zoom Members' Net Profits") and (B) twenty percent (20%) of the Purchase Price (less, if applicable, the Closing Credit). For example, if the Purchase Price is $6,250,000.00 (including all closing costs, adjustments and credits), the total Investment Capital Contributions made by the Non-Zoom Members to the Company are $500,000.00, and the NoteNon-Zoom Members' Net Profits are $100,000.00, properly endorsed, representing the Note subject to then the Call Option and Price would be $8,100,000.00 ($6,250,000.00 + 1,250,000.00 + 100,000.00 + 500,000.00).
(ii) If the Company shall deliver to the Purchasers, in immediately available funds, the applicable Call Price.
(c) The Call Option provisions described in this Section 2 shall at all times be subject to (i) the prior Conversion Rights of the Purchasers and (ii) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time closing of the Call Notice transaction occurs more than one (1) year after the Option Effective Date, an amount equal to the sum of (A) the Purchase Price (less, if applicable, the Closing Credit), plus any Investment Capital Contributions made from time to time by the Non-Zoom Members to the Company, plus the Non-Zoom Members' Net Profits and on (B) (x) twenty percent (20%) of the the Purchase Price (less, if applicable, the Closing Credit), multiplied by (y) a fraction, the numerator of which shall be the number of months from the Option Effective Date to the close of the Call Exercise Datetransaction, and the denominator of which shall be twelve (12).
Appears in 1 contract
Call Option. (a) The Company At any time, and from time to time, on or after [•], 2023,11 but prior to [•], 2026,12 NEP Member shall have the right, but not the obligation, to acquire, subject to the limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at any time a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the Effective Date to the Call Option Closing Date, of eleven percent (11%) on each Class B Unit acquired upon the exercise of such Call Option (the “Call Option Purchase Price”), upon the terms and from time to time commencing on July 1, 1999 conditions set forth in this Section 7.02 (the “Call Option”). NEP Member may not assign its right to purchase from the outstanding Class B Units pursuant to this Section 7.02 to any holder Person other than NEP or a subsidiary thereof; provided, however, that, in the event of any such assignment, NEP Member and NEP shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Note Call Option.
(i) To exercise the Call Option, NEP Member shall deliver to the Class B Members written notice of such exercise (the "“Call Option"Option Notice”) following the end of trading on a Trading Day containing (A) the Note at date on which the Call Option is to be consummated (the “Call Option Closing”), which shall be seven (7) Business Days after the date of the Call Option Notice (the “Call Option Closing Date”), (B) the number 11 NTD - To be the date that is forty-two (42) months after the Effective Date. 12 NTD - To be the date that is seventy-eight (78) months after the Effective Date. 853984.14-WILSR01A - MSW of Class B Units to be purchased, (C) the Call Option Purchase Price per Class B Unit, (D) a call price report in the form of the IRR Report showing the Internal Rate of Return as of the Call Option Closing Date, and (E) the form of consideration to be used to pay the Call Option Purchase Price, which shall be either cash, Non-Voting NEP Common Units, or a combination of cash and Non-Voting NEP Common Units, subject to the other requirements of this Section 7.02, including the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that NEP Member may issue a maximum of one hundred (1) Call Option Notice in any calendar quarter. The Call Option Notice shall be delivered to the Class B Members seven (7) Business Days in advance of the Call Option Closing Date and sixteent & 6/10 percent shall be irrevocable. Delivery of the initial Call Option Notice may be made prior to the first date on which NEP Member is permitted to exercise the Call Option in accordance with the preceding sentence (116.6%but for the avoidance of doubt, no Call Option Closing shall occur prior to [•], 2023).13
(ii) The Class B Member Representative shall, at least four (4) Business Days prior to the Call Option Closing Date, deliver to the Company and NEP Member a written election (the “Call Option Election Notice”), notifying NEP Member as to whether any of the Class B Members elects to sell all or any portion of the Non-Voting NEP Common Units to be issued as payment of the Call Option Purchase Price (“Call Exercise NEP Units”) to a Person other than an Affiliate, Affiliated Fund, or Affiliated Investment Vehicle of such Class B Member (a “Third-Party Buyer”) within three (3) Business Days following the Call Option Closing Date (if applicable, the “Call Units Sale Date”) and specifying the number of Call Exercise NEP Units (if any) to be sold by each Class B Member (a “Sale Election”). The Call Option Election Notice shall be irrevocable. If any of the Class B Members makes a Sale Election, then such Class B Members shall use commercially reasonable efforts to make arrangements with an underwriter, broker, or other sales agent to facilitate such sale (the “Sale Arrangement”) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying (i) the number of Conversion Shares Exercise NEP Units that are subject to the Call Option, (ii) Sale Election on the Call PriceUnits Sale Date. The Class B Member Representative shall regularly update NEP with respect to the negotiation of the Sale Arrangement, and NEP shall use commercially reasonable efforts to cooperate with the Class B Member Representative in connection with sales of Call Exercise NEP Units pursuant to such Sale Arrangement.
(iii) the dateThe Class B Member Representative shall, not earlier than twenty at least two (202) Trading Business Days and not later than thirty (30) days, on which prior to the Call Option shall be exercised (the "Call Exercise Date"). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Closing Date, the Call Price shall be increased by one percent (1%) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver to the Company and NEP Member a written notice (the Note“Call Option Sale Notice”), properly endorsednotifying the Company and NEP Member as to whether any Sale Arrangement has been arranged, representing and, if so, the Note subject Agreed Sale Price per Call Exercise NEP Unit and the number of Call Exercise NEP Units to be sold by each applicable Class B Member on the Call Units Sale Date pursuant to such Sale Arrangement. The Call Option Sale Notice shall be irrevocable. NEP and such Class B Members shall use commercially reasonable efforts to cooperate in any sale of Call Exercise NEP Units pursuant to such Sale Arrangement. 13 NTD - To be the date that is forty-two (ii42) months after the Company shall deliver to the Purchasers, in immediately available funds, the applicable Call Price.Effective Date. 853984.14-WILSR01A - MSW
(c) The aggregate number of Class B Units purchased in any Call Option provisions described shall, cumulatively when taken together with all Class B Units purchased in this Section 2 all prior exercises of the Call Option, shall be no more than:
(i) from [•], 2023,14 but prior to [•], 2024,15 twenty-five percent (25%) of the total number of outstanding Class B Units;
(ii) from [•], 2024,16 but prior to [•], 2024,17 fifty percent (50%) of the total number of outstanding Class B Units;
(iii) from [•], 2024,18 but prior to [•], 2025,19 seventy-five percent (75%) of the total number of outstanding Class B Units; and
(iv) from and after [•], 2025,20 one hundred percent (100%) of the total number of outstanding Class B Units.
(d) Non-Voting NEP Common Units may be used for payment of the Call Option Purchase Price at all times be any Call Option Closing Date subject to the following limitations and the satisfaction of each of the following conditions as of the applicable Call Option Closing Date:
(i) the prior Conversion Rights of NEP Common Units are listed or admitted to trading on the Purchasers and Nasdaq Stock Market or the New York Stock Exchange;
(ii) the shares of Common Stock underlying the Notes must Registration Rights Agreement shall be covered by an effective resale registration statement pursuant in effect with respect to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech AmericaNEP Common Units into which the Non-Voting NEP Common Units are convertible, Inc.) subject to and in accordance with the terms of the NEP Limited Partnership Agreement;
(iii) the NEP LPA Amendment (as that term is used in the Purchase Agreement) shall be in full force and effect, without any modification thereto;
(iv) NEP must have an effective registration statement on file with the Commission covering resales of the underlying NEP Common Units to be received upon conversion of the Non-Voting NEP Common Units, and none of NEP or its Affiliates has knowledge of any news, events, or developments that NEP or such Affiliates believe would require it to suspend the use of such registration statement under Section 2.01(b) of the Registration Rights Agreement;
(v) (A) none of NEP or its Affiliates has knowledge of previously undisclosed material news, events, or developments that NEP or such Affiliate would be 14 NTD - To be the date that is forty-two (42) months after the Effective Date. 15 NTD - To be the date that is fifty-four (54) months after the Effective Date. 16 NTD - To be the date that is fifty-four (54) months after the Effective Date. 17 NTD - To be the date that is sixty (60) months after the Effective Date. 18 NTD - To be the date that is sixty (60) months after the Effective Date. 19 NTD - To be the date that is sixty-six (66) months after the Effective Date. 20 NTD - To be the date that is sixty-six (66) months after the Effective Date. 853984.14-WILSR01A - MSW obligated to disclose publicly, under applicable Law or the rules of the National Securities Purchase Agreement Exchange on which the NEP Common Units are listed, if NEP or such Affiliate were offering and selling NEP Common Units (or other publicly traded securities), the disclosure of which would reasonably be expected to negatively affect the trading price of NEP Common Units on the applicable National Securities Exchange; and (B) NEP (or its Affiliates) shall have publicly disclosed any material news, events or developments that would reasonably be expected to negatively affect the trading price of NEP Common Units on the applicable National Securities Exchange at least one (1) full Trading Day (on which NEP Common Units traded on the time applicable National Securities Exchange without stop or interruption) prior to the issuance of any Call Option Notice; and
(vi) in any exercise of the Call Option, the aggregate number of Non-Voting NEP Common Units that will be issued to holders of Class B Units at the applicable Call Option Closing, together with all Non-Voting NEP Common Units issued in all prior exercises of the Call Option, shall be no more than twenty-two and one half percent (22.5%) of the total number of outstanding NEP Common Units on a Fully Diluted Basis (including any Non-Voting NEP Common Units to be issued at the applicable Call Option Closing).
(e) NEP Member may pay any Call Option Purchase Price, at its option (subject to Section 7.02(d) above), in either cash, Non-Voting NEP Common Units, or a combination of cash and Non-Voting NEP Common Units. Any Call Exercise NEP Units to be issued as payment of (or partial payment of) any Call Option Purchase Price will be issued at a price (the “Issuance Price”) specified in the applicable Call Option Notice, which Issuance Price shall be specified as the lesser of (X) the 10-day VWAP on the date of the Call Option Notice and (Y) the listed price of a NEP Common Unit as of the end of trading on the date of the Call Option Notice; provided, however, that:
(i) if any portion of the Call Option Purchase Price is to be paid in cash (the “Call Option Cash Portion”), then the Call Option Cash Portion paid on the Call Option Closing Date shall be reduced by an amount equal to four percent (4%) of the Call Option Cash Portion;
(ii) if (A) any portion of the Call Option Purchase Price is to be paid in Non-Voting NEP Common Units, (B) the Class B Members have elected to sell some or all of the Call Exercise NEP Units through the applicable Sale Arrangement, and (C) the applicable Sale Unit Clawback Value is greater than zero (not to exceed the Clawback Cap), then the number of Call Exercise NEP Units to be issued to such Class B Member at the Call Option Closing shall be reduced by a number of Call Exercise NEP Units equal to the quotient obtained by dividing (y) the applicable Sale Unit Clawback Value by (z) the Issuance Price used in the calculation of the Call Option Purchase Price; and
(iii) if any portion of the Call Option Purchase Price is to be paid in Non-Voting NEP Common Units and the Class B Member Representative does not timely deliver a Call Option Sale Notice containing a Sale Election by one or more Class 853984.14-WILSR01A - MSW B Members to sell any of the Call Exercise NEP Units to be issued as part of such Call Option Purchase Price, then the number of Call Exercise NEP Units to be issued at the Call Option Closing shall be reduced by a number of Call Exercise NEP Units equal to the quotient obtained by dividing (A) the applicable Held Unit Clawback Value by (B) the Issuance Price used in the calculation of the Call Option Purchase Price.
(f) On each Call Option Closing Date, (i) the Class B Members will convey all right, title, and interest in and to the applicable Class B Units, free of all Encumbrances (other than those created by this Agreement or securities Laws), to NEP Member or its nominee; (ii) NEP Member or its nominee will pay the Call Option Cash Portion (subject to reduction pursuant to Section 7.02(e), as applicable), if any, to the Class B Members (or their nominee(s)) by wire transfer of immediately available funds; and (iii) NEP shall satisfy the remaining portion of the Call Option Purchase Price by issuing Non-Voting NEP Common Units to the Class B Members (subject to reduction pursuant to Section 7.02(e), as applicable), and, in connection therewith, NEP shall instruct, and shall use its commercially reasonable efforts to cause, its Transfer Agent to record the issuance of such Non-Voting NEP Common Units, as the case may be, to such Class B Members (or their nominee(s)). No fractional Non-Voting NEP Common Units will be issued, and any fractional Non-Voting NEP Common Units that otherwise would be issuable as part of the Call Option Purchase Price shall be rounded down to the nearest whole number of Non-Voting NEP Common Units, and the Call Option Cash Portion shall be increased to reflect the value of such fractional Non-Voting NEP Common Units. The Members agree that each Call Option Closing shall be subject to the receipt of all applicable Required Governmental Authorizations. In the event any such Required Governmental Authorizations shall not have been obtained by the date that is otherwise scheduled to be the Call Option Closing Date, then such Call Option Closing Date shall automatically be delayed until such date as all such Required Governmental Authorizations have been obtained and, for the avoidance of doubt, the Call Option Purchase Price set forth in the Call Option Notice shall be calculated from the Effective Date until the date of the actual Call Option Closing.
(g) Following consummation of the Call Option pursuant to which all of a Class B Member’s Class B Units are acquired by NEP Member (or its nominee), the Managing Member will amend this Agreement to reflect the withdrawal of such Class B Member and the transfer of the Class B Units effective as of the applicable Call Option Closing.
(h) If, in the exercise of any Call Option, the number of Class B Units to be purchased is less than all of the outstanding Class B Units and there are multiple holders of such Class B Units, the Class B Units so purchased will be acquired pro rata from the Class B Members (other than NEP Member and its Affiliates, if they hold Class B Units) based on the number of Class B Units held.
(i) Each Member agrees to cooperate fully with the Company, the Managing Member, and NEP to effect the Call Option Closing, including using its reasonable best efforts to obtain all applicable Governmental Authorizations, and entering into any agreements and instruments and executing any certificates or other documents the Managing Member reasonably deems necessary or appropriate to consummate the Disposition of the Class B Units. The Class B Members and NEP agree to use commercially reasonable efforts to coordinate with the Transfer 853984.14-WILSR01A - MSW Agent to record the issuance of Non-Voting NEP Common Units, as the case may be, to such Class B Members (or their nominee(s)).
(j) The NEP Member or its nominee shall be entitled to deduct and withhold from each Call Option Purchase Price the amounts each NEP Member or its nominee is required to deduct and withhold under any applicable Law, and amounts so withheld and properly remitted to the appropriate Governmental Authority shall be deemed paid for all purposes of this Agreement to the Person with respect to which such amount was withheld; provided that any such amounts shall be specified by the NEP Member in the applicable Call Option Notice; provided, further, that if, on the Call Option Closing Date, the Class B Members deliver to the NEP Member or its nominee withholding certificates pursuant to Treasury Regulations Section 1.1445-2(b)(2) and, in the case of a sale of the Class B Units, IRS Notice 2018-29, that the Class B Member (or if such entity is a disregarded entity, its regarded owner) is not a non-U.S. person, the NEP Member or its nominee shall not withhold any amounts under Section 1445 or Section 1446(f) of the Code unless there is a change in applicable Law prior to the Call Option Closing Date that requires such withholding.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (NextEra Energy Partners, LP)
Call Option. (a) The Company At any time, and from time to time, on or after May 13, 2023, but prior to May 13, 2026, NEP Member shall have the right, but not the obligation, to acquire, subject to the 853984.15A-WILSR01A - MSW limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at any time a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the Effective Date to the Call Option Closing Date, of eleven percent (11%) on each Class B Unit acquired upon the exercise of such Call Option (the “Call Option Purchase Price”), upon the terms and from time to time commencing on July 1, 1999 conditions set forth in this Section 7.02 (the “Call Option”). NEP Member may not assign its right to purchase from the outstanding Class B Units pursuant to this Section 7.02 to any holder Person other than NEP or a subsidiary thereof; provided, however, that, in the event of any such assignment, NEP Member and NEP shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Note Call Option.
(i) To exercise the Call Option, NEP Member shall deliver to the Class B Members written notice of such exercise (the "“Call Option"Option Notice”) following the end of trading on a Trading Day containing (A) the Note at a call price of one hundred and sixteent & 6/10 percent date on which the Call Option is to be consummated (116.6%the “Call Option Closing”), which shall be seven (7) Business Days after the date of the principal amount, plus accrued and unpaid interest thereon Call Option Notice (the "“Call Price") by delivering to the Purchasers a written notice specifying Option Closing Date”), (iB) the number of Conversion Shares Class B Units to be purchased, (C) the Call Option Purchase Price per Class B Unit, (D) a report in the form of the IRR Report showing the Internal Rate of Return as of the Call Option Closing Date, and (E) the form of consideration to be used to pay the Call Option Purchase Price, which shall be either cash, Non-Voting NEP Common Units, or a combination of cash and Non-Voting NEP Common Units, subject to the other requirements of this Section 7.02, including the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that NEP Member may issue a maximum of one (1) Call Option Notice in any calendar quarter. The Call Option Notice shall be delivered to the Class B Members seven (7) Business Days in advance of the Call Option Closing Date and shall be irrevocable. Delivery of the initial Call Option Notice may be made prior to the first date on which NEP Member is permitted to exercise the Call Option in accordance with the preceding sentence (but for the avoidance of doubt, no Call Option Closing shall occur prior to May 13, 2023).
(ii) The Class B Member Representative shall, at least four (4) Business Days prior to the Call Option Closing Date, deliver to the Company and NEP Member a written election (the “Call Option Election Notice”), notifying NEP Member as to whether any of the Class B Members elects to sell all or any portion of the Non-Voting NEP Common Units to be issued as payment of the Call Option Purchase Price (“Call Exercise NEP Units”) to a Person other than an Affiliate, Affiliated Fund, or Affiliated Investment Vehicle of such Class B Member (a “Third-Party Buyer”) within three (3) Business Days following the Call Option Closing Date (if applicable, the “Call Units Sale Date”) and specifying the number of Call Exercise NEP Units (if any) to be sold by each Class B Member (a “Sale Election”). The Call Option Election Notice shall be irrevocable. If any of the Class B Members makes a Sale Election, then such Class B Members shall use commercially reasonable efforts to make arrangements with an underwriter, broker, or other sales agent to facilitate such sale (the “Sale Arrangement”) of the Call Exercise NEP Units that are subject to the Call Option, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which the Call Option shall be exercised (the "Call Exercise Date"). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Date, the Call Price shall be increased by one percent (1%) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver to the Company the Note, properly endorsed, representing the Note subject to the Call Option and (ii) the Company shall deliver to the Purchasers, in immediately available funds, the applicable Call Price.
(c) The Call Option provisions described in this Section 2 shall at all times be subject to (i) the prior Conversion Rights of the Purchasers and (ii) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time of the Call Notice and Sale Election on the Call Units Sale Date. The Class B Member Representative shall regularly update 853984.15A-WILSR01A - MSW NEP with respect to the negotiation of the Sale Arrangement, and NEP shall use commercially reasonable efforts to cooperate with the Class B Member Representative in connection with sales of Call Exercise DateNEP Units pursuant to such Sale Arrangement.
Appears in 1 contract
Sources: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Call Option. (a) The Company At any time, and from time to time, on or after May 13, 2023, but prior to May 13, 2026, XPLR Member shall have the right, but not the obligation, to acquire, subject to the limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at any time a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the Effective Date to the Call Option Closing Date, of eleven percent (11%) on each Class B Unit acquired upon the exercise of such Call Option (the “Call Option Purchase Price”), upon the terms and from time to time commencing on July 1, 1999 conditions set forth in this Section 7.02 (the “Call Option”). XPLR Member may not assign its right to purchase from the outstanding Class B Units pursuant to this Section 7.02 to any holder Person other than XPLR or a subsidiary thereof; provided, however, that, in the event of any such assignment, XPLR Member and XPLR shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Note Call Option.
(i) To exercise the Call Option, XPLR Member shall deliver to the Class B Members written notice of such exercise (the "“Call Option"Option Notice”) following the end of trading on a Trading Day containing (A) the Note at a call price of one hundred and sixteent & 6/10 percent date on which the Call Option is to be consummated (116.6%the “Call Option Closing”), which shall be seven (7) Business Days after the date of the principal amount, plus accrued and unpaid interest thereon Call Option Notice (the "“Call Price") by delivering to the Purchasers a written notice specifying Option Closing Date”), (iB) the number of Conversion Shares Class B Units to be purchased, (C) the Call Option Purchase Price per Class B Unit, (D) a report in the form of the IRR Report showing the Internal Rate of Return as of the Call Option Closing Date, and (E) the form of consideration to be used to pay the Call Option Purchase Price, which shall be either cash, Non-Voting XPLR Common Units, or a combination of cash and Non-Voting XPLR Common Units, subject to the other requirements of this Section 7.02, including the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that XPLR Member may issue a maximum of one (1) Call Option Notice in any calendar quarter. The Call Option Notice shall be delivered to the Class B Members seven (7) Business Days in advance of the Call Option Closing Date and shall be irrevocable. Delivery of the initial Call Option Notice may be made prior to the first date on which XPLR Member is permitted to exercise the Call Option in accordance with the preceding sentence (but for the avoidance of doubt, no Call Option Closing shall occur prior to May 13, 2023). 953941.04-WILSR01A - MSW
(ii) The Class B Member Representative shall, at least four (4) Business Days prior to the Call Option Closing Date, deliver to the Company and XPLR Member a written election (the “Call Option Election Notice”), notifying XPLR Member as to whether any of the Class B Members elects to sell all or any portion of the Non-Voting XPLR Common Units to be issued as payment of the Call Option Purchase Price (“Call Exercise XPLR Units”) to a Person other than an Affiliate, Affiliated Fund, or Affiliated Investment Vehicle of such Class B Member (a “Third-Party Buyer”) within three (3) Business Days following the Call Option Closing Date (if applicable, the “Call Units Sale Date”) and specifying the number of Call Exercise XPLR Units (if any) to be sold by each Class B Member (a “Sale Election”). The Call Option Election Notice shall be irrevocable. If any of the Class B Members makes a Sale Election, then such Class B Members shall use commercially reasonable efforts to make arrangements with an underwriter, broker, or other sales agent to facilitate such sale (the “Sale Arrangement”) of the Call Exercise XPLR Units that are subject to the Call Option, (ii) Sale Election on the Call PriceUnits Sale Date. The Class B Member Representative shall regularly update XPLR with respect to the negotiation of the Sale Arrangement, and XPLR shall use commercially reasonable efforts to cooperate with the Class B Member Representative in connection with sales of Call Exercise XPLR Units pursuant to such Sale Arrangement.
(iii) the dateThe Class B Member Representative shall, not earlier than twenty at least two (202) Trading Business Days and not later than thirty (30) days, on which prior to the Call Option shall be exercised (the "Call Exercise Date"). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Closing Date, the Call Price shall be increased by one percent (1%) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver to the Company and XPLR Member a written notice (the Note“Call Option Sale Notice”), properly endorsednotifying the Company and XPLR Member as to whether any Sale Arrangement has been arranged, representing and, if so, the Note subject Agreed Sale Price per Call Exercise XPLR Unit and the number of Call Exercise XPLR Units to be sold by each applicable Class B Member on the Call Units Sale Date pursuant to such Sale Arrangement. The Call Option Sale Notice shall be irrevocable. XPLR and (ii) the Company such Class B Members shall deliver use commercially reasonable efforts to the Purchasers, cooperate in immediately available funds, the applicable any sale of Call PriceExercise XPLR Units pursuant to such Sale Arrangement.
(c) The aggregate number of Class B Units purchased in any Call Option provisions described shall, cumulatively when taken together with all Class B Units purchased in this Section 2 all prior exercises of the Call Option, shall be no more than:
(i) from May 13, 2023, but prior to May 13, 2024, twenty-five percent (25%) of the total number of outstanding Class B Units;
(ii) from May 13, 2024, but prior to November 13, 2024, fifty percent (50%) of the total number of outstanding Class B Units;
(iii) from November 13, 2024, but prior to May 13, 2025, seventy-five percent (75%) of the total number of outstanding Class B Units; and
(iv) from and after May 13, 2025, one hundred percent (100%) of the total number of outstanding Class B Units. 953941.04-WILSR01A - MSW
(d) Non-Voting XPLR Common Units may be used for payment of the Call Option Purchase Price at all times be any Call Option Closing Date subject to the following limitations and the satisfaction of each of the following conditions as of the applicable Call Option Closing Date:
(i) the prior Conversion Rights of XPLR Common Units are listed or admitted to trading on the Purchasers and Nasdaq Stock Market or the New York Stock Exchange;
(ii) the shares of Common Stock underlying the Notes must Registration Rights Agreement shall be covered by an effective resale registration statement pursuant in effect with respect to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech AmericaXPLR Common Units into which the Non-Voting XPLR Common Units are convertible, Inc.) subject to and in accordance with the terms of the XPLR Limited Partnership Agreement;
(iii) the NEP LPA Amendment (as that term is used in the Purchase Agreement) shall be in full force and effect, without any modification thereto;
(iv) XPLR must have an effective registration statement on file with the Commission covering resales of the underlying XPLR Common Units to be received upon conversion of the Non-Voting XPLR Common Units, and none of XPLR or its Affiliates has knowledge of any news, events, or developments that XPLR or such Affiliates believe would require it to suspend the use of such registration statement under Section 2.01(b) of the Registration Rights Agreement;
(A) none of XPLR or its Affiliates has knowledge of previously undisclosed material news, events, or developments that XPLR or such Affiliate would be obligated to disclose publicly, under applicable Law or the rules of the National Securities Purchase Agreement Exchange on which the XPLR Common Units are listed, if XPLR or such Affiliate were offering and selling XPLR Common Units (or other publicly traded securities), the disclosure of which would reasonably be expected to negatively affect the trading price of XPLR Common Units on the applicable National Securities Exchange; and (B) XPLR (or its Affiliates) shall have publicly disclosed any material news, events or developments that would reasonably be expected to negatively affect the trading price of XPLR Common Units on the applicable National Securities Exchange at least one (1) full Trading Day (on which XPLR Common Units traded on the time applicable National Securities Exchange without stop or interruption) prior to the issuance of any Call Option Notice; and
(vi) in any exercise of the Call Option, the aggregate number of Non-Voting XPLR Common Units that will be issued to holders of Class B Units at the applicable Call Option Closing, together with all Non-Voting XPLR Common Units issued in all prior exercises of the Call Option, shall be no more than twenty-two and one half percent (22.5%) of the total number of outstanding XPLR Common Units on a Fully Diluted Basis (including any Non-Voting XPLR Common Units to be issued at the applicable Call Option Closing).
(e) XPLR Member may pay any Call Option Purchase Price, at its option (subject to Section 7.02(d) above), in either cash, Non-Voting XPLR Common Units, or a combination of cash and Non-Voting XPLR Common Units. Any Call Exercise XPLR Units to 953941.04-WILSR01A - MSW be issued as payment of (or partial payment of) any Call Option Purchase Price will be issued at a price (the “Issuance Price”) specified in the applicable Call Option Notice, which Issuance Price shall be specified as the lesser of (X) the 10-day VWAP on the date of the Call Option Notice and (Y) the listed price of a XPLR Common Unit as of the end of trading on the date of the Call Option Notice; provided, however, that:
(i) if any portion of the Call Option Purchase Price is to be paid in cash (the “Call Option Cash Portion”), then the Call Option Cash Portion paid on the Call Option Closing Date shall be reduced by an amount equal to four percent (4%) of the Call Option Cash Portion;
(ii) if (A) any portion of the Call Option Purchase Price is to be paid in Non-Voting XPLR Common Units, (B) the Class B Members have elected to sell some or all of the Call Exercise XPLR Units through the applicable Sale Arrangement, and (C) the applicable Sale Unit Clawback Value is greater than zero (not to exceed the Clawback Cap), then the number of Call Exercise XPLR Units to be issued to such Class B Member at the Call Option Closing shall be reduced by a number of Call Exercise XPLR Units equal to the quotient obtained by dividing (y) the applicable Sale Unit Clawback Value by (z) the Issuance Price used in the calculation of the Call Option Purchase Price; and
(iii) if any portion of the Call Option Purchase Price is to be paid in Non-Voting XPLR Common Units and the Class B Member Representative does not timely deliver a Call Option Sale Notice containing a Sale Election by one or more Class B Members to sell any of the Call Exercise XPLR Units to be issued as part of such Call Option Purchase Price, then the number of Call Exercise XPLR Units to be issued at the Call Option Closing shall be reduced by a number of Call Exercise XPLR Units equal to the quotient obtained by dividing (A) the applicable Held Unit Clawback Value by (B) the Issuance Price used in the calculation of the Call Option Purchase Price.
(f) On each Call Option Closing Date, (i) the Class B Members will convey all right, title, and interest in and to the applicable Class B Units, free of all Encumbrances (other than those created by this Agreement or securities Laws), to XPLR Member or its nominee; (ii) XPLR Member or its nominee will pay the Call Option Cash Portion (subject to reduction pursuant to Section 7.02(e), as applicable), if any, to the Class B Members (or their nominee(s)) by wire transfer of immediately available funds; and (iii) XPLR shall satisfy the remaining portion of the Call Option Purchase Price by issuing Non-Voting XPLR Common Units to the Class B Members (subject to reduction pursuant to Section 7.02(e), as applicable), and, in connection therewith, XPLR shall instruct, and shall use its commercially reasonable efforts to cause, its Transfer Agent to record the issuance of such Non-Voting XPLR Common Units, as the case may be, to such Class B Members (or their nominee(s)). No fractional Non-Voting XPLR Common Units will be issued, and any fractional Non-Voting XPLR Common Units that otherwise would be issuable as part of the Call Option Purchase Price shall be rounded down to the nearest whole number of Non-Voting XPLR Common Units, and the Call Option Cash Portion shall be increased to reflect the value of such fractional Non-Voting XPLR Common Units. The Members agree that each Call Option Closing shall be subject to the receipt of all applicable Required Governmental Authorizations. In the event any such Required Governmental 953941.04-WILSR01A - MSW Authorizations shall not have been obtained by the date that is otherwise scheduled to be the Call Option Closing Date, then such Call Option Closing Date shall automatically be delayed until such date as all such Required Governmental Authorizations have been obtained and, for the avoidance of doubt, the Call Option Purchase Price set forth in the Call Option Notice shall be calculated from the Effective Date until the date of the actual Call Option Closing.
(g) Following consummation of the Call Option pursuant to which all of a Class B Member’s Class B Units are acquired by XPLR Member (or its nominee), the Managing Member will amend this Agreement to reflect the withdrawal of such Class B Member and the transfer of the Class B Units effective as of the applicable Call Option Closing.
(h) If, in the exercise of any Call Option, the number of Class B Units to be purchased is less than all of the outstanding Class B Units and there are multiple holders of such Class B Units, the Class B Units so purchased will be acquired pro rata from the Class B Members (other than XPLR Member and its Affiliates, if they hold Class B Units) based on the number of Class B Units held.
(i) Each Member agrees to cooperate fully with the Company, the Managing Member, and XPLR to effect the Call Option Closing, including using its reasonable best efforts to obtain all applicable Governmental Authorizations, and entering into any agreements and instruments and executing any certificates or other documents the Managing Member reasonably deems necessary or appropriate to consummate the Disposition of the Class B Units. The Class B Members and XPLR agree to use commercially reasonable efforts to coordinate with the Transfer Agent to record the issuance of Non-Voting XPLR Common Units, as the case may be, to such Class B Members (or their nominee(s)).
(j) XPLR Member or its nominee shall be entitled to deduct and withhold from each Call Option Purchase Price the amounts each XPLR Member or its nominee is required to deduct and withhold under any applicable Law, and amounts so withheld and properly remitted to the appropriate Governmental Authority shall be deemed paid for all purposes of this Agreement to the Person with respect to which such amount was withheld; provided that any such amounts shall be specified by XPLR Member in the applicable Call Option Notice; provided, further, that if, on the Call Option Closing Date, the Class B Members deliver to XPLR Member or its nominee withholding certificates pursuant to Treasury Regulations Section 1.1445-2(b)(2) and, in the case of a sale of the Class B Units, IRS Notice 2018-29, that the Class B Member (or if such entity is a disregarded entity, its regarded owner) is not a non-U.S. person, XPLR Member or its nominee shall not withhold any amounts under Section 1445 or Section 1446(f) of the Code unless there is a change in applicable Law prior to the Call Option Closing Date that requires such withholding.
Appears in 1 contract
Sources: Limited Liability Company Agreement (XPLR Infrastructure, LP)
Call Option. (a) The Company At any time, and from time to time, on or after December 11, 2022, but prior to June 11, 2026, XPLR Member shall have the right, but not the obligation, to acquire, subject to the limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the Effective Date to the Call Option Closing Date (the “Call Option Purchase Price”), upon the terms and conditions set forth in this Section 7.02 (the “Call Option”), of (i) eight and thirty-two hundredths of a percent (8.32%) on each Class B Unit acquired upon the exercise of such Call Option, for any time Call Option Closing Date that occurs prior to the Flip Date, or (ii) nine and thirty-two hundredths of a percent (9.32%) on each Class B Unit acquired upon the exercise of such Call Option, for any Call Option Closing Date that occurs on or after the Flip Date (provided, however, that the Internal Rate of Return set forth in this clause (ii) shall be measured only from time the third (3rd) anniversary of the Effective Date to time commencing on July 1the applicable Call Option Closing Date, 1999 and, with respect to the period from the Effective Date to the third (3rd) anniversary of the Effective Date, the Internal Rate of Return shall be as set forth in clause (i)). XPLR Member may not assign its right to purchase from the outstanding Class B Units pursuant to this Section 7.02 to any holder Person other than XPLR or a subsidiary thereof; provided, however, that, in the event of any such assignment, XPLR Member and XPLR shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Note Call Option.
(b) To exercise the Call Option, XPLR Member shall deliver to the Class B Members written notice of such exercise (the "“Call Option"Option Notice”) following the Note at end of trading on a call price of one hundred and sixteent & 6/10 percent (116.6%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying Trading Day containing (i) the number of Conversion Shares that are subject to date (the “Call Option Closing Date”) on which the Call OptionOption is to be consummated (the “Call Option Closing”), (ii) the Call Pricenumber of Class B Units to be purchased, and (iii) the dateCall Option Purchase Price per Class B Unit, not earlier than twenty and (20iv) Trading Days and not later than thirty (30) days, on which the form of consideration to be used to pay the Call Option Purchase Price, which shall be exercised either cash, Non-Voting XPLR Common Units (or XPLR Common Units if the "holder of Class B Units to be purchased requests in writing, not less than three (3) Business Days prior to the applicable Call Exercise Date"). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Option Closing Date, the Call Price shall issuance of XPLR Common Units), or a combination of cash and Non- 953901.04-WILSR01A - MSW Voting XPLR Common Units (or XPLR Common Units if the holder of Class B Units to be increased by one percent purchased requests in writing, not less than three (1%3) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver Business Days prior to the Company applicable Call Option Closing Date, the Noteissuance of XPLR Common Units), properly endorsed, representing the Note subject to the other requirements of this Section 7.02, and the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that XPLR Member may issue a maximum of (A) three (3) Call Option Notices in any calendar year and (iiB) the Company one (1) Call Option Notice in any calendar quarter. The Call Option Notice shall deliver be delivered to the PurchasersClass B Members at least seven (7) Business Days and no more than ten (10) Business Days in advance of the Call Option Closing Date and shall be irrevocable. Delivery of the initial Call Option Notice may be made prior to the first date on which XPLR Member is permitted to exercise the Call Option in accordance with the preceding sentence (but for the avoidance of doubt, in immediately available fundsno Call Option Closing shall occur prior to December 11, the 2022). No Call Option Notice may be delivered, nor may any Call Option Closing be consummated, within fourteen (14) calendar days before any date on which XPLR publicly announces its earnings for any Quarter or Fiscal Year (or any other expected public announcement of earnings or other “blackout period” under XPLR Member’s trading policies that are applicable Call Priceto all holders of XPLR Common Units).
(c) The following restrictions shall apply to each exercise of the Call Option:
(i) no Call Option provisions described may be exercised, and no Call Option Notice may be issued, (i) for a number of Class B Units that is less than eight percent (8%) of the Class B Units outstanding on the date of the applicable Call Option Notice; and (ii) if, and to the extent that, as a result of such exercise, on the applicable Call Option Closing Date, the holders of Class B Units other than the XPLR Class B Parties would own less than sixteen percent (16%) of the Class B Units then outstanding, unless, in the case of this clause (ii), the exercise of such Call Option is for the purchase of all remaining Class B Units not held by the XPLR Class B Parties; and
(ii) the aggregate number of Class B Units purchased in any Call Option shall, cumulatively when taken together with all Class B Units purchased in all prior exercises of the Call Option, shall be no more than:
(A) from December 11, 2022, but prior to June 11, 2023, ten percent (10%) of the total number of outstanding Class B Units;
(B) from June 11, 2023, but prior to December 11, 2023, twenty-five percent (25%) of the total number of outstanding Class B Units;
(C) from December 11, 2023, but prior to June 11, 2024, fifty percent (50%) of the total number of outstanding Class B Units;
(D) from June 11, 2024, but prior to December 11, 2024, seventy-five percent (75%) of the total number of outstanding Class B Units; and 953901.04-WILSR01A - MSW
(E) from December 11, 2024, but prior to June 11, 2026, one hundred percent (100%) of the total number of outstanding Class B Units.
(d) Non-Voting XPLR Common Units (or, if requested pursuant to Section 2 shall 7.02(b), XPLR Common Units) may be used for payment of the Call Option Purchase Price at all times be any Call Option Closing Date subject to the following limitations and the satisfaction of each of the following conditions as of the applicable Call Option Closing Date:
(i) the prior Conversion XPLR Common Units are listed or admitted to trading on the Nasdaq Stock Market or the New York Stock Exchange;
(ii) the Registration Rights Agreement is in effect with respect to the XPLR Common Units into which the Non-Voting XPLR Common Units are convertible, subject to and in accordance with the terms of the Purchasers XPLR Limited Partnership Agreement;
(iii) XPLR shall have filed a registration statement with the Commission registering the resale of the XPLR Common Units into which the Non-Voting XPLR Common Units issued at such Call Option Closing are convertible, and such registration shall have been declared effective by the Commission, and no stop order shall have been issued with respect thereto;
(iv) (A) none of XPLR or its Affiliates has knowledge of previously undisclosed material events or developments that XPLR or such Affiliate would be obligated to disclose publicly, under applicable Law or the rules of the National Securities Exchange on which the XPLR Common Units are listed, if XPLR or such Affiliate were offering and selling XPLR Common Units (or other publicly traded securities), the disclosure of which would reasonably be expected to negatively affect the trading price of XPLR Common Units on the applicable National Securities Exchange; and (B) XPLR (or its Affiliates) shall have publicly disclosed any material events or developments that would reasonably be expected to negatively affect the trading price of XPLR Common Units on the applicable National Securities Exchange at least one (1) full Trading Day (on which XPLR Common Units traded on the applicable National Securities Exchange without stop or interruption) prior to the issuance of any Call Option Notice;
(v) in any exercise of the Call Option, the aggregate number of XPLR Common Units and Non-Voting XPLR Common Units that will be issued to holders of Class B Units at the applicable Call Option Closing, together with all XPLR Common Units and Non-Voting XPLR Common Units issued in all prior exercises of the Call Option, shall be no more than twenty-two and one half percent (22.5%) of the total number of outstanding XPLR Common Units on a Fully Diluted Basis (including any XPLR Common Units to be issued at the applicable Call Option Closing); and
(vi) on such Call Option Closing Date, there being no Call Option Cash Shortfall. 953901.04-WILSR01A - MSW (e) XPLR Member may pay any Call Option Purchase Price, at its option (subject to Section 7.02(d) above), in either cash, Non-Voting XPLR Common Units (or, if requested pursuant to Section 7.02(b), XPLR Common Units), or a combination of cash and Non-Voting XPLR Common Units (or, if requested pursuant to Section 7.02(b), XPLR Common Units); provided, however, that the holder of Class B Units to be purchased shall be entitled to require, by written notice delivered to XPLR Member not less than three (3) Business Days prior to the applicable Call Option Closing Date, that up to thirty percent (30%) of the Call Option Purchase Price payable at such Call Option Closing consist of cash (the “Call Option Cash Consideration”). Any XPLR Common Units or Non-Voting XPLR Common Units to be issued as payment of (or partial payment of) any Call Option Purchase Price will be issued at a price (the “Issuance Price”) specified in the applicable Call Option Notice, which Issuance Price shall be the lesser of (i) the 10-day VWAP on the date of the Call Option Notice and (ii) the shares listed price of a XPLR Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms Unit as of the Securities Purchase Agreement at end of trading on the time date of the Call Notice and on the Call Exercise DateOption Notice.
Appears in 1 contract
Sources: Limited Liability Company Agreement (XPLR Infrastructure, LP)
Call Option. (a) The Company shall have the right, at any time and from time to time commencing on July one (1) year after the Closing Date, 1999 to purchase from any holder of the Note Notes (the "Call Option") the Note Notes at a call price of one hundred and sixteent & 6/10 twelve percent (116.6112%) of the principal amount, plus accrued and unpaid interest thereon (the "Call Price") by delivering to the Purchasers a written notice specifying (i) the number of Conversion Shares that are subject to the Call Option, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which the Call Option shall be exercised (the "Call Exercise Date"). Commencing on the first day of the thirteenth (13th) month from August the date hereof (November 1, 1999 1998) and on each month thereafter until the Maturity Date, the Call Price shall be increased by one percent (1%) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver to the Company the NoteNotes, properly endorsed, representing the Note Notes subject to the Call Option and (ii) the Company shall deliver to the Purchasers, in immediately available funds, the applicable Call Price.
(c) The Call Option provisions described in this Section 2 3 shall at all times be subject to (i) the prior Conversion Rights of the Purchasers and (ii) the following limitations: (A) no more than 8.33% of the outstanding principal balance of the Notes may be called at any one time; (B) at least thirty (30) calendar days must elapsed between Call Options; (C) Call Options will be effected pro rata among the Purchasers in the manner set forth in Section 3.4 of the Securities Purchase Agreement; and (D) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time of the Call Notice and on the Call Exercise Date.
Appears in 1 contract
Call Option. (a) The Company At any time, and from time to time, on or after December 15, 2027, but prior to December 15, 2032, XPLR Member shall have the right, but not the obligation, to acquire, subject to the limitations and requirements of this Section 7.02, all or any portion of the outstanding Class B Units at a purchase price that results in an Internal Rate of Return per Class B Unit purchased pursuant to this Section 7.02, measured from the applicable Acquisition Date of such Class B Unit to the Call Option Closing Date, of six and nine hundred thirty-one thousandths percent (6.931%) (the “Call Option Purchase Price”), upon the terms and conditions set forth in this Section 7.02 (the “Call Option”). XPLR Member may not assign its right to purchase the outstanding Class B Units pursuant to this Section 7.02 to any Person other than XPLR or a Subsidiary thereof; provided, however, that, in the event of any such assignment, XPLR Member and XPLR shall remain subject to their respective obligations set forth in this Section 7.02 upon any exercise of the Call Option.
(b) To exercise the Call Option, XPLR Member shall deliver to the Class B Members written notice of such exercise (the “Call Option Notice”) containing (i) the date (the “Call Option Closing Date”) on which the Call Option is to be consummated (the “Call Option Closing”), (ii) the number of Class B Units to be purchased, (iii) the Call Option Purchase Price per Class B Unit, and (iv) the form of consideration to be used to pay the Call Option Purchase Price, which shall be either cash, Non-Voting XPLR Common Units (or XPLR Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business 91 953834.04-WILSR01A - MSW Days prior to the applicable Call Option Closing Date, the issuance of XPLR Common Units), or a combination of cash and Non-Voting XPLR Common Units (or XPLR Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Call Option Closing Date, the issuance of XPLR Common Units), subject to the other requirements of this Section 7.02, and the respective proportions thereof to be paid to the Class B Members (or their nominee(s)); provided, however, that XPLR Member may issue a maximum of one (1) Call Option Notice in any calendar quarter. The Call Option Notice shall be delivered to the Class B Members at least five (5) calendar days, but not more than ten (10) Business Days, in advance of the Call Option Closing Date. Delivery of the initial Call Option Notice may be made prior to the first date on which XPLR Member is permitted to exercise the Call Option in accordance with the preceding sentence (but for the avoidance of doubt, no Call Option Closing shall occur prior to December 15, 2027). If the consideration to be used to pay the Call Option Purchase Price, as set forth in the Call Option Notice, includes Non-Voting XPLR Common Units (or XPLR Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Call Option Closing Date, the issuance of XPLR Common Units), then the applicable Call Option Notice may not be delivered, nor may any Call Option Closing be consummated, within fourteen (14) calendar days before any date on which XPLR publicly announces its earnings for any Quarter or Fiscal Year.
(c) The following restrictions shall apply to each exercise of the Call Option:
(i) no Call Option may be exercised, and no Call Option Notice may be issued other than for a number of Class B Units that is five percent (5%) (or any integral multiple of five percent (5%)) of the total number of Class B Units (excluding outstanding Supplemental Class B Units) outstanding on the date of the applicable Call Option Notice, unless such exercise of the Call Option is for the purchase of all remaining Class B Units not held by XPLR Class B Parties;
(ii) the number of Class B Units purchased pursuant to the exercise of the Call Option during any calendar quarter shall not exceed twenty-five percent (25%) of the total number of Class B Units (excluding outstanding Supplemental Class B Units) outstanding on the date of the applicable Call Option Notice; provided, however, that the restriction set forth in this clause (ii) shall terminate on December 15, 2031;
(iii) the Class B Units purchased directly from each Class B Member or indirectly through a Blocker Merger pursuant to any exercise of the Call Option shall consist of a Proportionate Class B Allocation of such Class B Member’s or Blocker’s Class B Units;
(iv) if Investor delivers notice to XPLR Member of Investor’s intent for XPLR Member (or its nominee) to purchase Blocker Interests in connection with such Call Option pursuant to a Blocker Merger in accordance with Section 7.02(n), then Investor shall take such actions as are necessary to ensure that the number of Class B Units to be purchased indirectly through a Blocker Merger pursuant to such Call Option shall equal the exact number of Class B Units directly or indirectly owned by any one Blocker or the exact number of Class B Units directly or indirectly owned, in the 953834.04-WILSR01A - MSW aggregate, by any two or more Blockers (such that the acquisition of Blocker Interests through such Blocker Merger pursuant to such Call Option provides XPLR Member (or its nominee) the indirect ownership, through the surviving Blocker of such Blocker Merger, of the number of Class B Units set forth in such Call Option Notice, less the number of Class B Units that Investor has elected for XPLR Member (or its nominee) to purchase directly in connection with such Call Option); and
(v) the aggregate number of Class B Units acquired in any Call Option shall, cumulatively when taken together with all Class B Units purchased in all prior exercises of the Call Option, be no more than:
(A) from December 15, 2027, but prior to December 15, 2028, twenty percent (20%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units);
(B) from December 15, 2028, but prior to December 15, 2029, forty percent (40%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units);
(C) from December 15, 2029, but prior to December 15, 2030, sixty percent (60%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units);
(D) from December 15, 2030, but prior to December 15, 2031, eighty percent (80%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units); and
(E) from December 15, 2031, but prior to December 15, 2032, one hundred percent (100%) of the total number of outstanding Class B Units (excluding outstanding Supplemental Class B Units).
(d) Non-Voting XPLR Common Units (or, if requested pursuant to Section 7.02(b), XPLR Common Units) may be used for payment of the Call Option Purchase Price at any Call Option Closing Date subject to the following limitations and the satisfaction of each of the following conditions as of the applicable Call Option Closing Date:
(i) the XPLR Common Units are listed or admitted to trading on the Nasdaq Stock Market or the New York Stock Exchange;
(ii) (A) the Registration Rights Agreement is in effect with respect to the XPLR Common Units to be issued as part of the Call Option Purchase Price (or into which the Non-Voting XPLR Common Units are convertible), subject to and in accordance with the terms of the XPLR Limited Partnership Agreement, and (B) XPLR shall use commercially reasonable efforts to file, as promptly as practicable following the delivery of the applicable Call Option Notice, a registration statement with the Commission registering the resale of the XPLR Common Units to be issued at the Call Option Closing as part of the Call Option Purchase Price (or into which the Non-Voting XPLR Common Units issued at such Call Option Closing are convertible); and 953834.04-WILSR01A - MSW
(iii) on such Call Option Closing Date, there shall be no Call Option Cash Shortfall.
(e) XPLR Member may pay any Call Option Purchase Price, at its option (subject to Section 7.02(d) above), in either cash, Non-Voting XPLR Common Units (or, if requested pursuant to Section 7.02(b), XPLR Common Units), or a combination of cash and Non-Voting XPLR Common Units (or, if requested pursuant to Section 7.02(b), XPLR Common Units).
(f) Any XPLR Common Units or Non-Voting XPLR Common Units to be issued as payment of (or partial payment of) any Call Option Purchase Price will be issued at a price (the “Issuance Price”) specified in the applicable Call Option Notice, which Issuance Price shall be the lesser of (i) the 10-day VWAP on the Trading Day immediately preceding the date of the Call Option Notice and (ii) the listed price of a XPLR Common Unit as of the end of trading on the Trading Day immediately preceding the date of the Call Option Notice.
(g) On each Call Option Closing Date, (i) the Class B Members will convey all right, title, and interest in and to the applicable Class B Units, free of all Encumbrances (other than restrictions on transfer arising under this Agreement and under applicable securities Laws), to XPLR Member or its nominee; (ii) XPLR Member or its nominee will pay the cash portion of the Call Option Purchase Price to the Class B Members (or their nominee(s)) by wire transfer of immediately available funds; and (iii) XPLR shall satisfy the remaining portion of the Call Option Purchase Price by issuing Non-Voting XPLR Common Units (or, if requested pursuant to Section 7.02(b), XPLR Common Units) to the Class B Members, and, in connection therewith, XPLR shall instruct, and shall use its commercially reasonable efforts to cause, its Transfer Agent to record the issuance of such XPLR Common Units or Non-Voting XPLR Common Units, as the case may be, to such Class B Members (or their nominee(s)). No fractional XPLR Common Units or Non-Voting XPLR Common Units, as the case may be, will be issued. The Members agree that each Call Option Closing shall be subject to the receipt of all applicable Required Governmental Authorizations. In the event any such Required Governmental Authorizations shall not have been obtained by the date that is otherwise scheduled to be the Call Option Closing Date, then such Call Option Closing Date shall automatically be delayed until such date as all such Required Governmental Authorizations have been obtained and, for the avoidance of doubt, the Call Option Purchase Price set forth in the Call Option Notice shall be calculated from the applicable Acquisition Date of the Class B Units to be purchased until the date of the actual Call Option Closing.
(h) Each Class B Member hereby agrees that, in connection with each Call Option Closing, such Class B Member (or its Affiliates) shall use reasonable best efforts to obtain Qualifying Financing and shall borrow an amount thereunder that, together with the aggregate amount of any Call Option Cash Consideration, if any, to be paid to such Class B Member and all other cash on hand and all Cash Equivalents of such Class B Member, provides such Class B Member sufficient cash to repay the portion of such Class B Member’s then outstanding Indebtedness under any Class B Permitted Loan Financing required to be repaid as a result of such exercise of the Call Option (including the net amount of any termination payments and unpaid amounts under any Permitted Hedging Transactions and any other breakage costs, termination fees, and other payments due and payable under such Class B Permitted Loan Financing in connection with such repayment), and to cause the release of all Encumbrances (other than restrictions on transfer arising under this Agreement and under applicable securities Laws) on the Class B Units being acquired pursuant to the exercise of such Call Option. To the extent that the net proceeds from the Qualifying Financing, together with the aggregate Call Option Cash Consideration to be paid to such Class B Member (net of any deductions or withholdings therefrom pursuant to Section 7.02(m)) and all other cash on hand and Cash Equivalents of the applicable Class B Member, are insufficient to repay in full the portion of Indebtedness under such Class B Permitted Loan Financing that is required to be repaid (including the net amount of any termination payments and unpaid amounts under any Permitted Hedging Transactions and any other breakage costs, termination fees and other payments due and payable under such Class B Permitted Loan Financing in connection with such repayment) as a result of the exercise of such Call Option (such deficiency, a “Call Option Cash Shortfall”), then such Class B Member shall use reasonable best efforts to remedy such Call Option Cash Shortfall as promptly as practicable by obtaining Qualifying Financing (or additional Qualifying Financing) in an amount required to remedy the Call Option Cash Shortfall. The Members agree that, if any Class B Permitted Loan Financing is outstanding at such time, each Call Option Closing shall be subject to there being no Call Option Cash Shortfall. If there is a Call Option Cash Shortfall and the applicable Class B Members are unable, using their respective reasonable best efforts to, secure Qualifying Financing or to refinance the existing Qualifying Financing with another Qualifying Financing, in an amount sufficient to remedy the Call Option Cash Shortfall by the Call Option Closing Date set forth in the applicable Call Option Notice (the “Scheduled Call Option Buyout Date”), then the applicable Call Option Closing shall automatically be delayed for a period (a “Call Option Delay Period”) commencing on the Scheduled Call Option Buyout Date and ending upon the earliest to occur of (i) the Call Option Closing, (ii) XPLR Member’s delivery of written revocation of the applicable Call Option Notice to the Class B Member Representative at any time after the Scheduled Call Option Buyout Date, and (iii) the date that is twenty (20) Business Days after the Scheduled Call Option Buyout Date. During any such Call Option Delay Period, the Class B Members shall use their respective reasonable best efforts to secure Qualifying Financing, or to refinance the existing Qualifying Financing with another Qualifying Financing, in an amount that is sufficient to remedy the Call Option Cash Shortfall; provided, however, that, at any time and from time to time commencing during such Call Option Delay Period, XPLR Member shall be entitled to modify the proportions of cash and Non-Voting XPLR Common Units (or XPLR Common Units, if requested pursuant to Section 7.02(b)) to be used to pay the Call Option Purchase Price at the applicable Call Option Closing, upon notice thereof delivered to the Class B Member Representative on July 1or after the Scheduled Call Option Buyout Date. If, 1999 following the Scheduled Call Option Buyout Date, the Class B Members are able, using their respective reasonable best efforts, to purchase from any holder remedy the Call Option Cash Shortfall, then (A) the Class B Member Representative shall promptly deliver written notice thereof to XPLR Member, (B) the applicable Call Option Closing shall occur as promptly thereafter as practicable, and (C) at the applicable Call Option Closing, the amount of the Note Call Option Purchase Price and the Issuance Price for Non-Voting XPLR Common Units (the "Call Option"or XPLR Common Units, if requested pursuant to Section 7.02(b)) the Note at a call price of one hundred and sixteent & 6/10 percent to be issued as payment (116.6%or partial payment) of the principal amountapplicable Call Option Purchase Price shall be the same as is set forth in the original Call Option Notice; provided that, plus accrued and unpaid interest thereon (if the "Class B Members are unable to remedy the applicable Call Price") Option Cash Shortfall by delivering the expiration of the applicable Call Option Delay Period, then the obligation of the Class B Members to use their respective reasonable best efforts 95 to secure Qualifying Financing, or to refinance the Purchasers a written notice specifying existing Qualifying Financing, in an amount sufficient to remedy the Call Option Cash Shortfall shall cease concurrently with such expiration of the applicable Call Option Delay Period.
(i) the number Following consummation of Conversion Shares that are subject to the Call Option, (ii) the Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and not later than thirty (30) days, on which the Call Option shall be exercised Closing pursuant to which all of a Class B Member’s Class B Units are acquired by XPLR Member (the "Call Exercise Date"or its nominee). Commencing on the first day of the month from August 1, 1999 and on each month thereafter until the Maturity Date, the Call Price shall be increased by one percent (1%) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver to the Company the Note, properly endorsed, representing the Note subject to the Call Option and (ii) the Company shall deliver to the Purchasers, in immediately available funds, the applicable Call Price.
(c) The Call Option provisions described in this Section 2 shall at all times be subject to (i) the prior Conversion Rights of the Purchasers and (ii) the shares of Common Stock underlying the Notes must be covered by an effective resale registration statement pursuant to the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 2 84734.3 (Vitech America, Inc.) terms of the Securities Purchase Agreement at the time of the Call Notice and on the Call Exercise Date.Managing Member will am
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Sources: Limited Liability Company Agreement (XPLR Infrastructure, LP)