Drag Along Right. (a) If the Board approves a Sale of the Company (the "APPROVED SALE"), the Stockholders will consent to and raise no objections to the Approved Sale of the Company and (i) if the Approved Sale of the Company is structured as a sale of stock, the Stockholders will agree to sell all of their Common Stock and rights to acquire Common Stock on the terms and conditions approved by the Board, (ii) if the Approved Sale of the Company is structured as a merger, consolidation or other reorganization, the Stockholders will vote in favor thereof (to the extent they are entitled to vote) and will not exercise any dissenters' rights of appraisal they may have under Delaware law, and (iii) if the Approved Sale of the Company is structured as a sale of all or substantially all of the Company's consolidated assets, the Stockholders will vote in favor thereof (to the extent they are entitled to vote). The Stockholders will use their best efforts to cooperate in the Approved Sale of the Company and will take all necessary and desirable actions in connection with the consummation of the Approved Sale of the Company as are reasonably requested by the Board, including, but not limited to, the provision of representations and warranties or indemnifications; provided that the Stockholders shall not be required to incur any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; and provided further that no Stockholder shall be required to provide substantively different representations and warranties or indemnification than any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited to the proceeds received by such Stockholder in connection with such Approved Sale. (b) The obligations of the Stockholders with respect to the Approved Sale of the Company are also subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale of the Company, all of the holders of each class of Common Stock will receive the same form and amount of consideration for their Common Stock as all other holders of the same class of Common Stock, or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will be given the same option; and (ii) the price per share of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate class, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be conclusive. (c) If the Company enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the Board, and to the extent required to comply with Rule 501, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative so appointed.
Appears in 1 contract
Sources: Investor Stockholders Agreement (Allotech International Inc)
Drag Along Right. (a) If INITIAL THREE-YEAR PERIOD. If, at any time from the Board approves Closing Date until the third anniversary thereof, HWH or the Company receives an offer from a Sale third party (which is not an Affiliate of HWH) on an arm's length basis to purchase all of the Company (the "APPROVED SALE"), the Stockholders will consent to issued and raise no objections to the Approved Sale of the Company and (i) if the Approved Sale of the Company is structured as a sale of outstanding capital stock, the Stockholders will agree to sell all of their Common Stock and rights to acquire Common Stock on the terms and conditions approved by the Board, (ii) if the Approved Sale of the Company is structured as a merger, consolidation or other reorganization, the Stockholders will vote in favor thereof (to the extent they are entitled to vote) and will not exercise any dissenters' rights of appraisal they may have under Delaware law, and (iii) if the Approved Sale of the Company is structured as a sale of all or substantially all of the Company's consolidated assets, the Stockholders will vote in favor thereof (to the extent they are entitled to vote). The Stockholders will use their best efforts to cooperate in the Approved Sale of the Company and will take all necessary and desirable actions (i) at a price that would result in connection with the consummation gross proceeds per Share (excluding any contingent, earnout or similar payment, but including any proceeds (up to 15% of the Approved Sale aggregate gross proceeds payable to the Buyers) that may be required to be held in escrow) to the Buyers that represent the greater of (1) a premium of at least 20% over the per Share purchase price that would apply if the Remaining Stockholder Put (as defined in the Buy/Sell Agreement) were to be exercised, as determined in accordance with Section 1.04 of the Buy/Sell Agreement, as if a Buy/Sell Initiation Notice (as defined in the Buy/Sell Agreement) had been given on the date that HWH or the Company as are reasonably requested receives the offer from the third party, and (2) the sum of (x) the original purchase price per Share paid by the BoardBuyers on the Closing Date, includingand (y) an amount constituting an internal rate of return of at least 10% of the original purchase price per Share paid by the Buyers on the Closing Date, compounded annually from the Closing Date, and (ii) for consideration consisting of cash and/or immediately freely tradable securities of a publicly traded company with a market capitalization of at least $1,000,000,000 (the items in clauses (i) and (ii), collectively referred to as the "Qualifying Consideration"), then HWH may transfer all, but not limited toless than all, of its Shares to such third party and shall have the right to require the Management Stockholders and the other Stockholders to sell all of their Shares on the same terms and conditions and for the same consideration per Share; provided, however, that following notice by HWH of its intention to exercise its rights pursuant to this Section 3.01(a), the provision of representations Buyers (or their permitted transferees under Section 1.02) shall first have the opportunity to exercise and warranties or indemnifications; provided that perfect their rights under the Buy/Sell Agreement and, upon such exercise, HWH and the Management Stockholders shall not be required to incur any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; and provided further that no Stockholder shall be required to provide substantively different representations and warranties or indemnification than exercise the Remaining Stockholder Put, unless HWH revokes its intention to exercise its Drag-Along Right pursuant to this Section 3.01(a) (which revocation may be made by HWH at any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited time prior to the proceeds received by such Stockholder in connection with such Approved Sale.
(b) The obligations closing of the Stockholders with respect to the Approved Sale of the Company are also subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale of the Company, all of the holders of each class of Common Stock will receive the same form and amount of consideration for their Common Stock as all other holders of the same class of Common Stock, or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will be given the same option; and (ii) the price per share of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate class, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be conclusive.
(c) If the Company enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganizationRemaining Stockholder Put), the Stockholders will, at the request of the Board, and to the extent required to comply with Rule 501, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative HWH does so appointed.revoke its
Appears in 1 contract
Drag Along Right. (a) If Subject to paragraph (b) below, if the Board approves a Sale of the Company (the "APPROVED SALEApproved Sale"), the Stockholders will consent to and raise no objections to the Approved Sale of the Company and (i) if the Approved Sale of the Company is structured as a sale of stock, the Stockholders will agree to sell all of their Common Stock and rights to acquire Common Stock on the terms and conditions approved by the Board, (ii) if the Approved Sale of the Company is structured as a merger, consolidation or other reorganization, the Stockholders will vote in favor thereof (to the extent they are entitled to vote) and will not exercise any dissenters' rights of appraisal they may have under Delaware law, and (iii) if the Approved Sale of the Company is structured as a sale of all or substantially all of the Company's consolidated assets, the Stockholders will vote in favor thereof (to the extent they are entitled to vote). The Stockholders will use their best efforts to cooperate in the Approved Sale of the Company and will take all necessary and desirable actions in connection with the consummation of the Approved Sale of the Company as are reasonably requested by the Board, including, but not limited to, the provision of representations and warranties or indemnifications; provided that the Stockholders shall not be required to incur any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; and provided further that no Stockholder shall be required to provide substantively different representations and warranties or indemnification than any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited to the proceeds received by such Stockholder in connection with such Approved Sale.
(b) The obligations of the Stockholders with respect to the Approved Sale of the Company are also subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale of the Company, all of the holders of each class of Common Stock will receive the same form and amount of consideration for their Common Stock as all other holders of the same class of Common Stock, or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will be given the same option; and (ii) the price per share of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate class, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be conclusive; and (iii) if the Approved Sale is to a Person that is not an Independent Third Party, the holders of a majority of the Common Stock held by the Other Stockholders may request that an appraisal of the fair market value of the securities to be sold and/or received by the Other Stockholders in connection with such Approved Sale be made by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be binding upon the Company and the Other Stockholders, and it shall be a condition to the consummation of such Approved Sale to a Person that is not an Independent Third Party that such Person pay as consideration to the Other Stockholders the fair market value as determined pursuant to such appraisal (if such appraisal results in a valuation greater than the valuation of the consideration proposed to be delivered in connection with such Approved Sale, the Company shall pay the costs of such appraisal, otherwise the requesting Stockholders shall pay such costs).
(c) If the Company enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the Board, and to the extent required to comply with Rule 501, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative so appointed.
(e) The provisions of this Section 5.3 shall terminate automatically and be of no further force and effect upon the consummation of a Public Offering.
Appears in 1 contract
Sources: Investor Stockholders Agreement (Commercial Vehicle Group, Inc.)
Drag Along Right. 13.3.1 Should the holders of more than fifty percent (a50%) If the Board approves a Sale of all Shares in the Company (collectively the "APPROVED SALE"“Selling Shareholder(s)”) propose in good faith to Transfer all of the Shares held by such Selling Shareholders or an Asset Sale to one or more bona fide arms-length third party purchaser(s) prior to the sale of the Second Tranche Shares (the “Earn-In Period”) with a valuation of all Shares in the Company exceeding EUR 15,000,000 or valuation of the Asset Sale exceeding EUR 15,000,000, then all the other Shareholders shall be obligated to Transfer all of their Shares (or, if the third party purchaser wishes to execute an Asset Sale, the Stockholders Selling Shareholders will consent have the right to and raise no objections to the Approved Sale of require that the Company and the other Shareholders will cause such Asset Sale to be executed) to such third party purchaser(s) with the same price as agreed to by the Selling Shareholders (i) if the Approved Sale “Drag-Along Right”). After the end of the Company is structured as Earn-In Period until the exercise of the Third Option, the Financier shall decide any Drag-Along Right sale, but the prior written consent to any proposed Drag-Along Right sale shall be required from the Founders should the valuation in a Drag-Along Right sale of stockall Shares in the Company or valuation of an Asset Sale be less than EUR 7,500,000. The Parties shall have an obligation to do all reasonable acts (including actions at the General Meetings and at the meetings of the Board) so as to safeguard the completion of the sale of all Shares or Asset Sale as efficiently as possible. The Parties hereby waive any redemption rights and commit to give consent under the Articles should the Selling Shareholders use their Drag-Along Right as set out above.
13.3.2 In case of a Drag-Along Right sale, the Stockholders will Parties agree that the definitive agreements to sell be entered into with the acquirer(s) shall contain terms and conditions, satisfactory to the Royalty Holders at their sole discretion, according to which the Company and the acquirer(s) unconditionally and irrevocable confirm that the Royalty Holder(s)’ Net Metals Royalty shall continue to bind the Company as well as the acquirer(s) as set out in this Agreement and the Royalty Holder(s) may also require the Pledge as set out in Section 9.8.1 above.
13.3.3 For the purposes of the Drag-Along Right, the “Minority Owner(s)” means a Party owning less than 50 % of all Shares in the Company and the “Majority Owner(s)” means a Party owning more than 50 % of their Common Stock all Shares in the Company, however the Founders’ ownership shall be calculated collectively. Accordingly, the Founders shall be the Majority Owners until the sale of the Second Tranche Shares and rights to acquire Common Stock on thereafter the Financier shall be the Majority Owner. In case of Drag-Along Right sale, the Parties agree that the terms and conditions approved by to be given in the Board, (ii) if definitive agreements shall be the Approved Sale of the Company is structured as a merger, consolidation or other reorganization, the Stockholders will vote same in favor thereof (to the extent they are entitled to vote) and will not exercise any dissenters' rights of appraisal they may have under Delaware law, and (iii) if the Approved Sale of the Company is structured as a sale respect of all or substantially all of the Company's consolidated assetssellers, the Stockholders will vote in favor thereof (to the extent they are entitled to vote). The Stockholders will use their best efforts to cooperate in the Approved Sale of the Company and will take all necessary and desirable actions in connection with the consummation of the Approved Sale of the Company as are reasonably requested by the Board, including, but not limited to, the provision of representations and warranties or indemnifications; provided that the Stockholders shall not be required to incur any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; and provided further that no Stockholder shall be required to provide substantively different representations and warranties or indemnification than any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited to the proceeds received by such Stockholder in connection with such Approved Sale.
(b) The obligations of the Stockholders with respect to the Approved Sale of the Company are also subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale of the Company, all of the holders of each class of Common Stock will receive the same form and amount of consideration for their Common Stock as all other holders of the same class of Common Stock, or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will be given the same option; and (ii) the price per share of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate class, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be conclusive.
(c) If the Company enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the Board, and to the extent required to comply with Rule 501, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative so appointed.except that:
Appears in 1 contract
Drag Along Right. (a) If In the event that the Board approves of Directors of the Company and the holders of a majority of the Series D Preferred Stock (collectively, the “Selling Investors”) approve a Sale of the Company in writing, specifying that this Section 4.3 shall apply to such transaction, then the Company and each holder of Company Securities hereby agree:
(a) if such Sale of the Company requires stockholder approval, with respect to all Company Securities entitled to vote in respect of such Sale of the Company that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all such Company Securities in favor of, and to approve and adopt, such Sale of the Company (together with any related amendment to the Amended Articles required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company (unless approved in writing by the Selling Investors);
(b) if such Sale of the Company is a Stock Sale, to sell the same proportion of Company Securities beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Company Securities, and on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provisions of this Section 4.3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, except as provided in this Agreement, any Company Securities of the Company owned by such party in a voting trust or subject any Company Securities to any arrangement or agreement with respect to the voting of such Company Securities, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company;
(f) if the consideration to be paid in exchange for the Company Securities pursuant to this Section 4.3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Company Securities which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Company Securities; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the "APPROVED SALE"), “Stockholder Representative”) with respect to matters affecting the Stockholders will under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification, expense reimbursement or similar obligations, and raise no objections (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to the Approved such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and (i) if its related service as the Approved Sale representative of the Company is structured as a sale of stock, the Stockholders will agree to sell all of their Common Stock and rights to acquire Common Stock on the terms and conditions approved by the Board, (ii) if the Approved Sale of the Company is structured as a merger, consolidation or other reorganization, the Stockholders will vote in favor thereof (to the extent they are entitled to vote) and will not exercise any dissenters' rights of appraisal they may have under Delaware lawStockholders, and (iiiy) if not to assert any claim or commence any suit against the Approved Sale of Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Company is structured as a sale of all or substantially all of the Company's consolidated assets, the Stockholders will vote in favor thereof (to the extent they are entitled to vote). The Stockholders will use their best efforts to cooperate in the Approved Sale of the Company and will take all necessary and desirable actions Stockholder Representative in connection with its service as the consummation of the Approved Sale of the Company as are reasonably requested by the BoardStockholder Representative, including, but not limited to, the provision of representations and warranties absent fraud or indemnifications; provided that the Stockholders shall not be required to incur any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; and provided further that no Stockholder shall be required to provide substantively different representations and warranties or indemnification than any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited to the proceeds received by such Stockholder in connection with such Approved Salewillful misconduct.
(b) The obligations of the Stockholders with respect to the Approved Sale of the Company are also subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale of the Company, all of the holders of each class of Common Stock will receive the same form and amount of consideration for their Common Stock as all other holders of the same class of Common Stock, or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will be given the same option; and (ii) the price per share of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate class, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be conclusive.
(c) If the Company enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the Board, and to the extent required to comply with Rule 501, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative so appointed.
Appears in 1 contract
Drag Along Right. (a) If Notwithstanding anything contained in this Article III to the Board approves a Sale of contrary, if the Company Sponsor Entities (the "APPROVED SALE")“Dragging Stockholders”) receive an offer to purchase or otherwise desire to Transfer (a “Sale Proposal”) a number of Shares, the Stockholders will consent to and raise no objections to the Approved Sale of the Company and including (i) if Shares owned by other Stockholders (the Approved Sale “Drag Shares”) and (ii) all of the Company is structured as Shares owned by the Sponsor Entities, such that the transaction would result in a sale of stock, 100% of the Shares held by the Stockholders will agree (taking into account all Shares being “dragged”) (each, a “Required Sale”), then the Dragging Stockholders may, by delivery of a written notice (a “Required Sale Notice”) with respect to such Sale Proposal at least twenty (20) Business Days prior to the anticipated closing date of such Required Sale to all other Stockholders, require all other Stockholders to sell or otherwise Transfer their Shares to the proposed transferee, or take such other actions, in accordance with the provisions of this Section 3.5. In any such transaction, all of selling Stockholders must receive the same benefits and bear the same burden as the Dragging Stockholders in proportion to their Common Stock and rights to acquire Common Stock on Shares.
(b) The Required Sale Notice will include the material terms and conditions approved by of the BoardRequired Sale, including (i) the name and address of the proposed transferee, (ii) the proposed amount and form of consideration (and if the Approved Sale such consideration consists in part or in whole of the Company is structured as a merger, consolidation or property other reorganizationthan cash, the Dragging Stockholders will vote in favor thereof (provide such information, to the extent they are entitled reasonably available to votethe Dragging Stockholders (including using reasonable efforts to obtain such information from the proposed transferee, if applicable), relating to such non-cash consideration as the other Stockholders may reasonably request in order to evaluate such non-cash consideration) and will not exercise any dissenters' rights of appraisal they may have under Delaware law, and (iii) the proposed Transfer date, if known. The Dragging Stockholders will deliver or cause to be delivered to each other Stockholder copies of all transaction documents relating to the Approved Required Sale promptly as the same become available.
(c) Each Stockholder, upon receipt of a Required Sale Notice, shall be obligated to sell or otherwise Transfer all Shares held by such Stockholder and participate in the Required Sale contemplated by the Sale Proposal, to vote, if required by this Agreement or otherwise, its Shares in favor of the Required Sale at any meeting of stockholders called to vote on or approve the Required Sale and/or to consent in writing to the Required Sale, to cause any designees of such Stockholder serving on the Company is structured as a sale of all or substantially all of the Company's consolidated assets, the Stockholders will Board to vote in favor thereof (of the Required Sale in a vote among the Company Board called to vote on or approve the Required Sale and/or to consent in writing to the extent they are entitled Required Sale, to vote). The Stockholders will use their best efforts to cooperate in the Approved Sale of the Company and will take waive all necessary and desirable actions dissenters’ or appraisal or similar rights, if any, in connection with the consummation of Required Sale, to enter into agreements relating to the Approved Sale of Required Sale, to agree (as to itself) to make to the Company proposed purchaser the same representations, warranties, covenants, indemnities and agreements as are the Dragging Stockholders agree to make in connection with the Required Sale, and to take or cause to be taken all other actions as may be reasonably requested by necessary to consummate the BoardRequired Sale; provided that (x) unless otherwise agreed, including, but a Stockholder may not limited to, the provision of be required to make representations and warranties or indemnifications; provided that the provide indemnities as to any other Stockholders and a Stockholder shall not be required to incur make any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; representations and provided further that no Stockholder warranties (but, subject to clause (z) below, shall be required to provide substantively different several but not joint indemnities with respect to breaches of representations and warranties made by the Company or indemnification than its Subsidiaries) about the business of the Company or its Subsidiaries, (y) no such Stockholder shall be liable for the breach of any covenant by any other Stockholder and that each Stockholder's (z) notwithstanding anything in this Section 3.5(c) to the contrary, any liability relating to representations and warranties and covenants (and related indemnities) and other indemnification obligations thereunder regarding the business of the Company or its Subsidiaries assumed in connection with the Required Sale shall be several shared by all Stockholders based on their respective Sharing Percentages and limited to in any event shall not exceed the proceeds received by such Stockholder in connection with such Approved the Required Sale.
(bd) The obligations of Any expenses incurred for the Stockholders with respect to the Approved Sale benefit of the Company are also subject or all Stockholders, and any indemnities, holdbacks, escrows and similar items relating to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale of the CompanyRequired Sale, all of the holders of each class of Common Stock will receive the same form and amount of consideration for their Common Stock as all other holders of the same class of Common Stock, that are not paid or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will be given the same option; and (ii) the price per share of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined established by the holders Company (other than those that relate to representations or indemnities concerning a Stockholder’s valid ownership of at least its Shares free and clear of all liens, claims and encumbrances or a majority of the shares of Class A Common Stockholder’s authority, power and the Class D common voting as legal right to enter into and consummate a separate class, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination purchase or merger agreement or ancillary documentation) shall be conclusivepaid or established by the Stockholders in accordance with their respective Sharing Percentages.
(ce) If The Dragging Stockholders shall, in their sole discretion, decide whether or not to pursue, consummate, postpone or abandon any Required Sale and the terms and conditions thereof. No Stockholder nor any Affiliate of any such Stockholder shall have any liability to any other Stockholder or the Company enters into arising from, relating to or in connection with the pursuit, consummation, postponement, abandonment or terms and conditions of any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the Board, and Required Sale except to the extent required such Stockholder shall have failed to comply with Rule 501, appoint a purchaser representative the provisions of this Section 3.5.
(as such term is defined in Rule 501f) reasonably acceptable to The provisions of this Section 3.5 shall terminate upon the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees completion of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative so appointedan IPO.
Appears in 1 contract
Drag Along Right. (a) If at any time and from time to time after the Board approves date of this Agreement, Stockholders holding a Sale majority of the Common Stock on an as-converted basis (the “Majority Holders”) wish to (i) Transfer in a bona fide arms’ length sale all of their Capital Stock to any Person or Persons who are not Affiliates of the Company (or the "APPROVED SALE"), the Stockholders will consent to and raise no objections to the Approved Sale Majority Holders for consideration consisting of the Company and (i) if the Approved Sale of the Company is structured as a sale of stock, the Stockholders will agree to sell all of their Common Stock and rights to acquire Common Stock on the terms and conditions approved by the Boardat least 80% cash or cash equivalents or readily marketable securities, (ii) if the Approved Sale approve any merger of the Company with or into any other Person who is structured as a merger, consolidation not an Affiliate of the Company or other reorganization, the Stockholders will vote Majority Holders where each Stockholder receives its Proportionate Percentage of the aggregate consideration paid in favor thereof such merger (appropriately adjusted to account for the extent they are entitled to vote) and will not exercise any dissenters' redemption rights of appraisal they may have under Delaware lawthe holder of Series A Preferred Stock only in the event that the proposed sale price per share of Series A Preferred Stock is not more than the amount that the redemption price would be for such share of Series A Preferred Stock if redeemed on the date of sale), and which consideration consists of at least 80% cash or cash equivalents or readily marketable securities, or (iii) if the Approved Sale of the Company is structured as a approve any sale of all or substantially all of the Company's consolidated assets, the Stockholders will vote in favor thereof (’s assets for consideration consisting of at least 80% cash or cash equivalents or readily marketable securities to the extent they any Person or Persons who are entitled to vote). The Stockholders will use their best efforts to cooperate in the Approved Sale not Affiliates of the Company or the Majority Holders (for purposes of this Section 2.7, such Person or Persons is referred to as the “Proposed Transferee”), the Majority Holders shall have the right (for purposes of Section 2.7, the “Drag-Along Right”) to (x) in the case of a Transfer of the type referred to in clause (i), require each other Stockholder to sell to the Proposed Transferee all of its Capital Stock (including any warrants or options or other rights to acquire Capital Stock) for an amount equal to such other Stockholder’s Proportionate Percentage of the total consideration proposed to be received by all Stockholders (appropriately adjusted to account for the redemption rights of the holder of Series A Preferred Stock only in the event that the proposed sale price per share of Series A Preferred Stock is not more than the amount that the redemption price would be for such share of Series A Preferred Stock if redeemed on the date of sale); or (y) in the case of a merger or sale of assets referred to in clauses (ii) or (iii), require each other Stockholder to vote all Capital Stock then held by such other Stockholder in favor of such transaction and will to waive any dissenter or appraisal right such Stockholder may have under Applicable Law. Each Stockholder agrees to take all steps necessary and desirable actions in connection to enable him or it to comply with the consummation provisions of this Section 2.7 to facilitate the Majority Holders’ exercise of a Drag-Along Right.
(b) To exercise a Drag-Along Right, the Majority Holders shall give each Stockholder a written notice (for purposes of this Section 2.7, a “Drag-Along Notice”) containing (1) the name and address of the Approved Sale Proposed Transferee and (2) the proposed purchase price, terms of payment and other material terms and conditions of the Company as are reasonably requested Proposed Transferee’s offer. Each Stockholder shall thereafter be obligated to sell or vote its Capital Stock (including any warrants or options or other rights to purchase Capital Stock held by the Boardsuch Stockholder), including, but not limited to, the provision of representations and warranties or indemnifications; provided that the sale to the Proposed Transferee is consummated within ninety (90) days of delivery of the Drag-Along Notice. If the sale or merger is not consummated within such ninety (90)-day period, then each Stockholder shall no longer be obligated to sell such Stockholder’s Capital Stock pursuant to that specific Drag-Along Right but shall remain subject to the provisions of this Section 2.7.
(c) Each Stockholder shall execute and deliver such instruments of conveyance and transfer and take such other action, including executing any purchase agreement, merger agreement, indemnity agreement, escrow agreement or related documents, as may be reasonably required by the Majority Holders or the Company in order to carry out the terms and provisions of this Section 2.7; provided, however that such Stockholders shall not be required to incur make any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; and provided further that no Stockholder shall be required to provide substantively different representations and warranties or provide indemnification than any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited to the proceeds received by Proposed Transferee other than representations and warranties with respect to title to the Capital Stock being voted or sold and authority to vote or sell such Capital Stock and indemnities related to such representations and warranties. If the transaction is structured as a merger or consolidation, each Stockholder shall waive any dissenters’ rights, appraisal rights or similar rights in connection with the proposed transaction. If any Stockholder fails or refuses to vote or sell his, her or its shares of Capital Stock as required by, or votes his, her or its shares of Capital Stock in contravention of, this Section 2.7, then such Approved SaleStockholder hereby grants to the Secretary of the Company an irrevocable proxy, coupled with an interest, to vote such shares in accordance with the provisions of this Section 2.7, and hereby appoints the Secretary of the Company his, her or its attorney in fact, to sell such shares of Capital Stock in accordance with the provisions of this Section 2.7.
(bd) The obligations Notwithstanding anything contained in this Section 2.7, in the event that all or a portion of the Stockholders with respect purchase price consists of securities, and the sale of such securities to the Approved Sale Stockholders would require either a registration under the Securities Act or the preparation of a disclosure document pursuant to Regulation D under the Securities Act (or any successor regulation) or a similar provision of any state securities law, then, at the option of the Company are also subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale of the CompanyMajority Holders, all of the holders Stockholders requiring delivery of each class such disclosure statement may receive, in lieu of Common Stock will receive the same form and amount of consideration for their Common Stock as all other holders of the same class of Common Stock, or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will be given the same option; and (ii) the price per share of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate classsuch securities, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be conclusive.
(c) If the Company enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the Board, and to the extent required to comply with Rule 501, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees Fair Market Value of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative so appointedsecurities in cash.
Appears in 1 contract
Drag Along Right. In the event that (a) If the Board approves of Directors, (b) holders of a Sale majority of the then outstanding shares of Common Stock and Preferred Stock (voting together as a single class on an as-converted basis), (c) holders of a majority of the then outstanding shares of Common Stock held by the Founder Holders (voting as a separate class) and (d) solely if the holders of Series D Preferred Stock or Series E Preferred Stock have a separate approval right pursuant to Section 6(b)(i) or 6(c)(i) of Article IV of the Restated Charter, holders of a majority of the then outstanding shares of Series D Preferred Stock or Series E Preferred Stock, as applicable (in each case, voting as a separate class on an as-converted basis) (collectively, the “Requisite Parties”), approve (i) a transaction or series of related transactions in which an individual or entity or group of related individuals or entities acquires from the stockholders of the Company shares representing more than 50% of the outstanding voting power of the Company (a “Stock Sale”) or (ii) a Deemed Liquidation Event (each, a “Sale of the "APPROVED SALE"Company”), each of the Stockholders will agrees:
6.1 to consent to to, vote for and raise no objections to the Approved Sale of the Company and (i) if the Approved any matter that could reasonably be expected to facilitate such Sale of the Company is structured as a (including without limitation any amendment to the Restated Charter), and to vote against any proposal for any financing, recapitalization, merger, sale of stock, assets or other business combination (other than such Sale of the Stockholders will agree Company) that could reasonably be expected to sell all delay or impair the ability of their Common Stock and rights the Company to acquire Common Stock on consummate such Sale of the terms and conditions approved by the Board, (ii) Company;
6.2 if the Approved Sale of the Company is structured as a merger, consolidation or other reorganizationasset sale, the Stockholders will vote to waive any dissenters rights, appraisal rights or similar rights in favor thereof (to the extent they are entitled to vote) and will not exercise any dissenters' rights of appraisal they may have under Delaware law, and (iii) connection with such transaction;
6.3 if the Approved Sale of the Company is structured as a sale of all or substantially all Stock Sale, to sell such Stockholder’s shares of the Company's consolidated assetsCompany on the terms and conditions approved by the Requisite Parties, provided that such terms do not provide that the Stockholders will vote in favor thereof (Stockholder would receive less than the amount that would be distributed to the extent they are entitled to vote). The Stockholders will use their best efforts to cooperate such Stockholder in the Approved event the proceeds of the Sale of the Company and will were distributed in accordance with the Restated Charter then in effect; and
6.4 to take all necessary and desirable actions approved by the Requisite Parties in connection with the consummation of the Approved Sale of the Company, including the execution of such agreements and such instruments and other actions reasonably necessary to provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to the Sale of the Company; provided, that the liability for indemnification, if any, of each Stockholder in such Sale of the Company is several and not joint (except to the extent that funds may be paid out of an escrow established to cover breaches of representations, warranties and covenants of the Company as are reasonably requested well as breach by any stockholder of any identical representations, warranties and covenants provided by all stockholders), is pro rata based on the Boardconsideration payable to each Stockholder in the Sale of the Company, includingand will not exceed the consideration payable to such Stockholder in the Sale of the Company, but not limited toexcept, in each case, in the provision case of representations and warranties liability for fraud by such Stockholder; provided, further, in no event will Durable, Revolution Growth, D1, Lone Pine, any Fidelity Investor or indemnifications; provided that the Stockholders shall not any ▇. ▇▇▇▇ Price Investor, or any of their respective Affiliates, be required to incur enter into any outnon-ofcompetition, non-pocket expenses solicitation or similar agreement, or any release of claims other than those arising solely in connection with such Approved Sale Stockholder’s capacity as a stockholder of the Company which are not reimbursed by the Company; and provided further that no Stockholder shall be required to provide substantively different representations and warranties or indemnification than any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited to the proceeds received by such Stockholder in connection with such Approved Sale.
(b) The obligations of the Stockholders with respect to the Approved Sale of the Company are also subject to the satisfaction of the following conditions: (i) provided, further, upon the consummation of the Approved Sale of the Company, all of the holders Company (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same form and amount of consideration for their per share of Common Stock as all is received by other holders in respect of the same class their shares of Common Stock, or and (iv) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the amount of consideration the holders of Preferred Stock and Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Sale of the Company is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Sale of the Company; provided, further, that subject to the immediately preceding proviso, requiring the same form of consideration to be available to the holders of any capital stock, if any Stockholders holders of any single class or series of capital stock of the Company are given an option as to the form and amount of consideration to be receivedreceived as a result of the Sale of the Company, all holders of the same class of Common Stock capital stock will be given the same option; provided, however, that nothing in this proviso shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s stockholders; provided, that, with respect to any holder of Series H Preferred Stock, the per-share proceeds payable to such Stockholder in the Sale of the Company in respect of such Series H Preferred Stock will be at least the Original Series H Price (as defined in the Restated Charter) (as adjusted for stock splits, stock dividends and similar recapitalization events), notwithstanding anything herein to the contrary; provided, further, that with respect to any holder of Series I Preferred Stock, the per-share proceeds payable to such Stockholder in the Sale of the Company in respect of such Series I Preferred Stock will be at least the Original Series I Price (as defined in the Restated Charter) (as adjusted for stock splits, stock dividends and similar recapitalization events), notwithstanding anything herein to the contrary; provided, further, that with respect to any holder of Series J Preferred Stock, the per-share proceeds payable to such Stockholder in the Sale of the Company in respect of such Series J Preferred Stock will be at least the Original Series J Price (as defined in the Restated Charter) (as adjusted for stock splits, stock dividends and similar recapitalization events), notwithstanding anything herein to the contrary. The provisions of this Section 6 shall terminate and be of no further force and effect immediately upon the closing of (i) the IPO or (ii) a Deemed Liquidation Event; provided, that the price per share provisions of Common Stock this Section 6 will be payable in cash or publicly traded securities and will be on terms consistent with continue after the rights and preferences set forth in the Company's Certificate closing of Incorporation as is reasonably determined by the holders of at least a majority any Sale of the shares Company to the extent necessary to enforce the provisions of Class A Common and the Class D common voting as a separate class, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be conclusive.
(c) If the Company enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available this Section 6 with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request Sale of the Board, and to the extent required to comply with Rule 501, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative so appointedCompany.
Appears in 1 contract
Drag Along Right. (a) If In the event that holders of more than two-thirds (2/3) of the then outstanding shares of Common Stock and a majority of the members of the Board approves a Sale of Directors of the Company approve the sale of the Company and in connection therewith the Board determines in good faith and in a commercially reasonable manner that the sale is in the best interests of the Company and its stockholders (the "APPROVED SALE"an “Approved Transfer”), the Stockholders will consent to and raise no objections to the Approved Sale Transfer of the Company and (i) if the Approved Sale Transfer of the Company is structured as a sale of stock, the Stockholders will agree to sell all of their Common Capital Stock and rights to acquire Common Stock in the Company on the terms and conditions approved by the BoardBoard of Directors with respect to all holders of Capital Stock, (ii) if the Approved Sale Transfer of the Company is structured as a merger, consolidation or other reorganization, the Stockholders will vote in favor thereof (to the extent they are entitled to vote) and will not exercise any dissenters' ’ rights of appraisal they it may have under Delaware lawthe laws of the State of Nevada, and (iii) if the Approved Sale Transfer of the Company is structured as a sale of all or substantially all of the assets of the Company's consolidated assets, the Stockholders will vote in favor thereof (to the extent they are entitled to vote)thereof. The Stockholders will use their reasonable best efforts to cooperate in the Approved Sale Transfer of the Company and will take all necessary and desirable actions in connection with the consummation of the Approved Sale Transfer of the Company as are reasonably requested by the BoardBoard of Directors, including, but not limited to, the provision of reasonable and customary representations and warranties or indemnificationsin relation to the Stockholders’ Capital Stock in the Company; provided provided, however, that the Stockholders shall not be required to incur any out-of-pocket expenses in connection with such Approved Sale Transfer of the Company which are not reimbursed by the Company; and provided further that no Stockholder the Stockholders shall not be required to provide substantively different representations and more onerous representations, warranties or indemnification than any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited to the proceeds received by such Stockholder in connection with such Approved Sale.
(b) Not less than thirty (30) days prior to the date proposed for the closing of any Approved Transfer, the Company shall give written notice to the Stockholders, setting forth in reasonable detail the name or names of the purchaser, the terms and conditions of the Approved Transfer, including the purchase price, and the proposed closing date.
(c) The obligations of the Stockholders with respect to the Approved Sale Transfer of the Company are also subject to the satisfaction of the following conditions: (i) condition that upon the consummation of the Approved Sale Transfer of the Company, all of the holders of each class Capital Stock of Common Stock the Company will have the right to receive the same form and amount of consideration for their Common shares of Capital Stock as all other holders of the same class of Common Stock, or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will be given the same option; and (ii) the price per share of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate class, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be conclusiveclasses.
(c) If the Company enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the Board, and to the extent required to comply with Rule 501, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative so appointed.
Appears in 1 contract
Sources: Stockholders Agreement (Nascent Wine Company, Inc.)
Drag Along Right. (a) If Subject to Section 5.2(b), if the Board approves Majority Onex Investors approve a Sale of the Company (the "APPROVED SALE"), the Stockholders will consent to and raise no objections to the Approved Sale of the Company and (i) if the Approved Sale of the Company is structured as a sale of stockShares, the Stockholders will agree to sell all the types and classes of their Common Stock and rights to acquire Common Stock securities in the same relative proportions as do Onex Investors or Affiliates of Ones Investors on the terms and conditions approved by the BoardMajority Onex Investors, (ii) if the Approved Sale of the Company is structured as a merger, consolidation or other reorganization, the Stockholders will vote in favor thereof (to the extent they are entitled to vote) and will not exercise any dissenters' rights of appraisal they may have under Delaware law, and (iii) if the Approved Sale of the Company is structured as a sale of all or substantially all of the Company's consolidated assets, the Stockholders will vote in favor thereof (to the extent they are entitled to vote)thereof. The Stockholders will use their best efforts to cooperate in the Approved Sale of the Company and will take all necessary and desirable actions in connection with the consummation of the Approved Sale of the Company as are reasonably requested by the BoardMajority Onex Investors, including, but not limited to, the entry into agreements and provision of representations representations, warranties and warranties or indemnifications; provided that the Stockholders shall not be required to incur any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; and provided further indemnification, provided, that no Stockholder shall be required to enter into substantively different agreements or provide substantively different representations and warranties or indemnification than any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited to the proceeds received by such Stockholder in connection with such Approved Sale.
(b) The obligations of the Stockholders with respect to the Approved Sale of the Company are also subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale of the CompanySale, all of the holders of each class of Common Stock Stockholders will receive the same form and per Share amount of consideration for their Common Stock Shares as all other holders of the same class of Common StockStockholders, or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will Stockholders must be given the same optionoption (except that the Approved Sale may provide for payment in securities, or a combination of cash and securities, to all Stockholders that are accredited investors within the meaning of Regulation D under the Securities Act and in cash to Stockholders that are not accredited investors or may provide Stockholders that are accredited investors with the option to receive securities, or a combination of cash and securities, or cash while Stockholders that are not accredited investors receive cash); and (ii) if the price per share Approved Sale includes a sale to a Person that is an Onex Investor or an Affiliate of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by an Onex Investor, the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate class, the holders of at least a majority control of the Class B Common voting as a separate class, and Shares held by the holders of at least a majority Other Investors may request that an appraisal of the shares fair market value of Class C Common voting as a separate classthe securities to be sold and/or received (based on the fair market value of all of the Company's outstanding capital stock, and if without regard to any control premium or liquidity or minority discount) by the Other Investors in connection with such classes cannot agree, Approved Sale be made by an investment banking firm of national recognition mutually agreeable to such parties, whose determination and it shall be conclusivea condition to the consummation of such Approved Sale to an Onex Investor or an Affiliate of an Onex Investor that such Person pay as consideration to the Other Investors the fair market value as determined pursuant to such appraisal (if such appraisal results in a valuation greater than the valuation of the consideration proposed to be delivered in connection with such Approved Sale, the Company shall pay the costs of such appraisal, otherwise the requesting Stockholders shall pay such costs).
(c) If the Company enters into any negotiation or transaction proposed Approved Sale involves the receipt by Stockholders of securities for which Section 4(2) of the Securities Act of 1933 or Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the BoardMajority Onex Investors, and to the extent required to comply with Rule 501Regulation D, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the BoardMajority Onex Investors. If any Stockholder appoints the a purchaser representative designated by the BoardMajority Onex Investors, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the BoardMajority Onex Investors, such holder will appoint another purchaser representative (reasonably acceptable to the BoardMajority Onex Investors), and such holder will be responsible for the fees of the purchaser representative so appointed.
Appears in 1 contract
Sources: Investor Stockholders Agreement (SHG Holding Solutions Inc)
Drag Along Right. (a) If In the event that the Board approves and those Stockholders holding a Sale majority in interest of the outstanding capital stock of the Company (the "APPROVED SALE")vote to approve a Change in Control, the Stockholders will consent to and raise no objections to the Approved Sale of the Company and then each Stockholder hereby agrees:
(i) if such Change in Control requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (i) all such Shares in favor of, and adopt, such Change in Control (together with any related amendment to the Approved Sale Certificate required in order to implement such Change in Control), and (ii) in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company is structured as a sale of stock, the Stockholders will agree to sell all of their Common Stock and rights to acquire Common Stock on the terms and conditions approved by the Board, consummate such Change in Control;
(ii) if such Change in Control is to be effected by sale of Company capital stock to a third party (a “Stock Sale”), to sell the Approved Sale same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is structured being sold by all other holders of Company capital stock and, except as a mergerpermitted in Section 4.7(b), consolidation on the same terms and conditions as holders of the same class or other reorganization, the Stockholders will vote in favor thereof (to the extent they series of Company capital stock are entitled to vote) and will not exercise any dissenters' rights of appraisal they may have under Delaware law, and so selling;
(iii) if the Approved Sale to execute and deliver all related documentation and take such other action in support of the Change in Control as shall reasonably be requested by the Company is structured in order to carry out the terms and provisions of this Section 4.7, including, without limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, exchange agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(iv) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares owned by such Stockholder or its Affiliate in a sale of all voting trust or substantially all of the Company's consolidated assets, the Stockholders will vote in favor thereof (subject any Shares to any arrangement or agreement with respect to the extent they are entitled voting of such Shares, unless specifically requested to vote). The Stockholders will use their best efforts to cooperate in do so by the Approved Sale of the Company and will take all necessary and desirable actions acquirer in connection with the consummation Change in Control;
(v) not to assert or exercise any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Change in Control; and
(vi) if the consideration to be paid in exchange for the Shares in any Change in Control includes any securities and due receipt thereof by any Stockholder would require under applicable law (A) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities, or (B) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D, as promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Approved Sale Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the Company securities which such Stockholder would otherwise receive as are reasonably requested by of the Boarddate of the issuance of such securities in exchange for such Stockholder’s Shares.
(b) Notwithstanding the foregoing Section 4.7(a), including, but not limited to, the provision of no Stockholder will be required to comply with such section in connection with any proposed Change in Control unless:
(i) any representations and warranties or indemnifications; provided that the Stockholders shall not to be required to incur any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; and provided further that no Stockholder shall be required to provide substantively different representations and warranties or indemnification than any other Stockholder and that each Stockholder's obligations thereunder shall be several and limited to the proceeds received made by such Stockholder in connection with such Approved Sale.
proposed Change in Control are limited to representations and warranties related to authority, ownership and the ability to convey title to such Stockholder’s Shares, including, without limitation, representations and warranties that (bA) The the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (B) the obligations of the Stockholder in connection with the proposed Change in Control have been duly authorized, if applicable, (C) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms, and (D) neither the execution and delivery of documents to be entered into in connection with such proposed Change in Control, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ii) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with such proposed Change in Control, other than the Company (except to the extent that funds may be paid in proportion to the amount of consideration to be received by such Stockholder out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Stockholder of any of identical representations, warranties and covenants provided by all Stockholders);
(iii) the liability for indemnification, if any, of such Stockholder in such proposed Change in Control and for the inaccuracy of any representations and warranties made by the Company in connection with such proposed Change in Control, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Stockholder of any of identical representations, warranties and covenants provided by all Stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such proposed Change in Control (in accordance with the provisions of the Certificate);
(iv) the Stockholder’s liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such proposed Change in Control in accordance with the provisions of the Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such proposed Change in Control, except with respect to claims related to fraud, intentional misrepresentation or willful misconduct by such Stockholder, the Approved Sale of the Company are also subject liability for which need not be limited as to the satisfaction of the following conditions: such Stockholder;
(iv) upon the consummation of the Approved Sale such proposed Change in Control, (A) each holder of each class or series of the Company’s capital stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, all (B) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of Preferred Stock of such same series, (C) each holder of the holders of each class of Common Stock will receive the same form and amount of consideration for their per share of such Common Stock as is received by other holders in respect of their shares of the Common Stock, and (D) the aggregate consideration receivable by all other holders of the Preferred Stock and Common Stock shall be allocated among the holders of the Preferred Stock and Common Stock on the basis of the relative liquidation preferences, if any, set forth in the Certificate in connection with a liquidation or a Change in Control, as applicable; and
(vi) subject to the foregoing subsection (v), requiring the same form of consideration to be available to the holders of any single class or series of Common Stockcapital stock, or if any Stockholders holders of any capital stock of the Company are given an option as to the form and amount of consideration to be receivedreceived as a result of such proposed Change in Control, all holders of the same class of Common Stock such capital stock will be given the same option; and (ii) the price per share of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate class, the holders of at least a majority of the Class B Common voting as a separate class, and the holders of at least a majority of the shares of Class C Common voting as a separate class, and if such classes cannot agree, by an investment banking firm of national recognition mutually agreeable to such parties, whose determination shall be conclusive.
(c) If the Company enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the Board, and to the extent required to comply with Rule 501, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints the purchaser representative designated by the Board, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the Board, such holder will appoint another purchaser representative (reasonably acceptable to the Board), and such holder will be responsible for the fees of the purchaser representative so appointed.
Appears in 1 contract
Sources: Stockholders Agreement (Rexahn Pharmaceuticals, Inc.)
Drag Along Right. (a) If Subject to Section 5.2(b), if the Board approves Majority Onex Investors approve a Sale of the Company (the "APPROVED SALE"“Approved Sale”), the Stockholders will consent to and raise no objections to the Approved Sale of the Company and (i) if the Approved Sale of the Company is structured as a sale of stockShares, the Stockholders will agree to sell all the types and classes of their Common Stock and rights to acquire Common Stock securities in the same relative proportions as do Onex Investors or Affiliates of Onex Investors on the same terms and conditions approved (except, with respect to persons who are not accredited investors, as permitted by Section 5.2(b)) as applicable to the BoardMajority Onex Investors, (ii) if the Approved Sale of the Company is structured as a merger, consolidation or other reorganization, the Stockholders will vote in favor thereof (to the extent they are entitled to vote) and will not exercise any dissenters' ’ rights of appraisal they may have under Delaware law, and (iii) if the Approved Sale of the Company is structured as a sale of all or substantially all of the Company's ’s consolidated assets, the Stockholders will vote in favor thereof (to the extent they are entitled to vote)thereof. The Stockholders will use their best efforts to cooperate in the Approved Sale of the Company and will take all necessary and desirable actions in connection with the consummation of the Approved Sale of the Company as are reasonably requested by the BoardMajority Onex Investors, including, but not limited to, the entry into customary agreements and provision of representations customary representations, warranties and warranties or indemnifications; provided that the Stockholders shall not be required to incur any out-of-pocket expenses in connection with such Approved Sale of the Company which are not reimbursed by the Company; and provided further indemnification, provided, that no Stockholder shall be required to enter into substantively different agreements or provide substantively different representations and warranties or indemnification than any other Stockholder and that each Stockholder's ’s obligations thereunder shall be several and limited to the proceeds received by such Stockholder in connection with such Approved Sale.
(b) The obligations of the Stockholders with respect to the Approved Sale of the Company are also subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale of the CompanySale, all of the holders of each class of Common Stock Stockholders will receive the same form and per Share amount of consideration for their Common Stock Shares as all other holders of the same class of Common StockStockholders, or if any Stockholders are given an option as to the form and amount of consideration to be received, all holders of the same class of Common Stock will Stockholders must be given the same optionoption (except that the Approved Sale may provide for payment in securities, or a combination of cash and securities, to all Stockholders that are accredited investors within the meaning of Regulation D under the Securities Act and in cash to Stockholders that are not accredited investors or may provide Stockholders that are accredited investors with the option to receive securities, or a combination of cash and securities, or cash while Stockholders that are not accredited investors receive cash); and (ii) if the price per share Approved Sale includes a sale to a Person that is an Onex Investor or an Affiliate of Common Stock will be payable in cash or publicly traded securities and will be on terms consistent with the rights and preferences set forth in the Company's Certificate of Incorporation as is reasonably determined by an Onex Investor, the holders of at least a majority of the shares of Class A Common and the Class D common voting as a separate class, the holders of at least a majority control of the Class B Common voting as a separate class, and Shares held by the holders of at least a majority Other Investors may request that an appraisal of the shares fair market value of Class C Common voting the securities to be sold and/or received (based on the fair market value of the sale of all of the Company’s outstanding capital stock as a separate class, and if sold in an arms-length transaction) by the Other Investors in connection with such classes cannot agree, Approved Sale be made by an investment banking firm of national recognition mutually agreeable to such parties, whose determination and it shall be conclusivea condition to the consummation of such Approved Sale to an Onex Investor or an Affiliate of an Onex Investor that such Person pay as consideration to the Other Investors the fair market value as determined pursuant to such appraisal (if such appraisal results in a valuation greater than the valuation of the consideration proposed to be delivered in connection with such Approved Sale, the Company shall pay the costs of such appraisal, otherwise the requesting Stockholders shall pay such costs).
(c) If the Company enters into any negotiation or transaction proposed Approved Sale involves the receipt by Stockholders of securities for which Section 4(2) of the Securities Act or Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholders will, at the request of the BoardMajority Onex Investors, and to the extent required to comply with Rule 501Regulation D, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the BoardMajority Onex Investors. If any Stockholder appoints the a purchaser representative designated by the BoardMajority Onex Investors, the Company will pay the fees of such purchaser representative, but if any Stockholder declines to appoint the purchaser representative designated by the BoardMajority Onex Investors, such holder will appoint another purchaser representative (reasonably acceptable to the BoardMajority Onex Investors), and such holder will be responsible for the fees of the purchaser representative so appointed.
Appears in 1 contract
Sources: Investor Stockholders Agreement (TMS International Corp.)