Procedures. (a) Not later than 30 calendar days after the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a). (b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made. (c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following: (i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration); (ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member; (iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld; (iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect; (v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and (vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained. (d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 4 contracts
Sources: Omnibus Agreement (KNOT Offshore Partners LP), Omnibus Agreement (KNOT Offshore Partners LP), Omnibus Agreement (KNOT Offshore Partners LP)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten (10) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such ten (10) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "Overallotment Notice"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 4 contracts
Sources: Investor Rights Agreement (Net Value Holdings Inc), Investor Rights Agreement (Net Value Holdings Inc), Investor Rights Agreement (Net Value Holdings Inc)
Procedures. Until a Qualified IPO, if the Company proposes to issue any New Ownership Interest, the Company will give each Holder of Investor Units and/or Common Units prior written notice of such intention, describing the New Ownership Interest and the price, the terms and conditions upon which the Company proposes to issue the New Ownership Interest. Each Holder of Investor Units and/or Common Units will have fifteen (a15) Not later Business Days from the giving of such notice to agree to purchase its applicable Participating Interest of the New Ownership Interest for the price and upon the terms and conditions specified in the notice by giving written notice to the Company and stating therein the portion of the New Ownership Interest to be purchased. Notwithstanding the foregoing, the Company will not be required to offer or sell such New Ownership Interest to any Member if: (i) such offer or sale would cause the Company to be in violation of applicable federal or state securities laws by virtue of such offer or sale; or (ii) such Holder has previously suffered an uncured Funding Default. If not all of the Holders elect to purchase their Participating Interest of the New Ownership Interest, then the Company will promptly notify in writing the Holders who do so elect and will offer such Holders the right to acquire such unsubscribed New Ownership Interest. Each such Holder of Investor Units and/or Common Units will have five (5) Business Days after receipt of such notice to notify the Company of its election to purchase all or a portion of such unsubscribed New Ownership Interest (allocated based on the relative Participating Interests of such Holders, if necessary). The issuance of any New Ownership Interest by the Company and required payment by the Holders exercising their Preemptive Right will occur no earlier than 30 calendar days after twenty (20) Business Days from the initial date of acceptance notice of such issuance by the Hull 2575 by Standard MarineCompany. If the Holders fail to exercise in full the Preemptive Rights, KNOT shall notify the Board Company will have one hundred and offer eighty (180) days thereafter to sell the Board New Ownership Interest in respect of which the opportunity Holder’s rights were not exercised, at a price and upon general terms and conditions materially no more favorable to cause any Partnership Group Member the purchasers thereof than specified in the Company’s notice to purchase the Hull 2575 Interests for fair market value Holders pursuant to this Section 4.5.2. If the Company has not sold such New Ownership Interest within one hundred eighty (180) days following the notice provided pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise4.5.2, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker Company will not thereafter issue or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access sell any New Ownership Interest without first offering such securities to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, Holders in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedmanner provided above.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 4 contracts
Sources: Limited Liability Company Agreement (Simon Worldwide Inc), Limited Liability Company Agreement (Simon Worldwide Inc), Limited Liability Company Agreement (Simon Worldwide Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Major Investor a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Major Investor shall have thirty (30) Not later than 30 calendar days from the date such Notice is effective, as determined pursuant to Section 6.1 hereof based upon the manner or method of notice, to agree in writing to purchase such Major Investor’s Pro Rata Share of such New Securities for the price and upon the general terms specified in the Notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Major Investor’s Pro Rata Share). If any Major Investor fails to so agree in writing within such thirty (30) day period to purchase such Major Investor’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such New Securities that he, she or it did not so agree to purchase and the Company shall promptly give each Major Investor who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder’s full Pro Rata Share of such offering of New Securities (the “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to purchase all (or any part) of the Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering, according to the relative Pro Rata Shares of the Purchasing Holders electing to purchase such overallotment shares, at any time within ten (10) days after the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value Overallotment Notice is effective pursuant to Section 10.1(a)6.1.
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Twitter, Inc.), Investors’ Rights Agreement (Twitter, Inc.)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Rights Holder shall have ten (10) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 6.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such ten (10) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchasefailure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (the “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to purchase a portion of the Nonpurchasing Holders’ unpurchased Pro Rata Share of such offering on a pro rata basis according to the relative Pro Rata Shares of the Purchasing Rights Holders, at any time within five (5) days after receiving the Overallotment Notice. The decision rights provided in this Section 3 may be assigned or transferred by any Holder that is an investment fund to purchase the Hull 2575 Interestsany of its partners, the fair market value to be paid for the Hull 2575 Interests, and the other terms members or any affiliated fund or entity of the purchase shall be approved Holder (including, without limitation, a fund or entity managed by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material termssame manager or managing member or general partner or management company or by an entity controlling, the Partnership Group Member and KNOT shall engage controlled by, or under common control with such manager or managing member or general partner or management company (such a mutually-agreed-upon investment banking firm, ship broker fund or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLPentity, an interest-bearing promissory note or other form of consideration“Affiliated Fund”);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Marin Software Inc), Investors’ Rights Agreement (Marin Software Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 6.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase up to such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Aquantia Corp), Investors’ Rights Agreement (Aquantia Corp)
Procedures. (a) Not later than 30 calendar days after the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise Tag-Along Seller is participating in a Tag-Along Sale, at least 15 days before the option to purchase proposed date thereof, the Hull 2575 Interests, it will provide, within 24 months Issuer shall provide each Holder of receipt of notice pursuant to Section 10.2(a), Warrants or Warrant Stock with written notice to KNOT of such exercise, Tag-Along Sale setting forth in reasonable detail the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value consideration per share to be paid for by the Hull 2575 Intereststransferee, the number of shares to be sold and the other terms and conditions of the purchase Tag-Along Sale. Each Holder of Warrants or Warrant Stock wishing to participate in the Tag-Along Sale shall be approved provide written notice to such Tag-Along Seller and to the Issuer within 15 days of the date the notice specified in the preceding sentence is received by such Holder. Such notice shall set forth the Conflicts Committeenumber (on an aggregate basis) of then exercisable Warrants and shares of Warrant Stock, if any, such holder elects to include in the Tag-Along Sale. If the Partnership Group Member and KNOT are unable a Holder, or Holders, of Warrants or Warrant Stock has elected to agree on the fair market value of the Hull 2575 Interests and/or the other material termsparticipate in a Tag-Along Sale, the Partnership Group Member and KNOT Tag-Along Seller shall engage a mutually-agreed-upon investment banking firmreduce, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be soldextent necessary, the investment banking firmnumber of shares of Common Stock that it is entitled to sell in the Tag-Along Sale to permit the Holder, ship broker or other expert advisorHolders, as applicableof Warrants or Warrant Stock to participate in the Tag-Along Sale and the Holder, will have access or Holders, of Warrant or Warrant Stock so electing shall sell such number of shares identified in its notice to the proposed sale and purchase values and terms for Tag-Along Seller. If such notice is not received from a Holder within the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination15-day period specified above, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties Tag-Along Seller shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation sell or otherwise transfer the shares of Common Stock to purchase the Hull 2575 under this Article X proposed transferee without any participation by such Holder, but only (i) on the terms and conditions stated in the related purchase notice, and sale agreement (ii) if the results sale or transfer of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in such shares of Common Stock is consummated not later than 60 days after the reasonable opinion end of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedsuch 5-day period specified above.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 3 contracts
Sources: Warrant Agreement (Metromedia Fiber Network Inc), Warrant Agreement (Metromedia Fiber Network Inc), Warrant Agreement (Metromedia Fiber Network Inc)
Procedures. Any Investor who does not exercise its respective rights of first refusal shall have the right, exercisable upon delivery of a written notice to the Selling Shareholder, with a copy to the Company, within twenty (a20) Not later than 30 calendar days Business Days after the date of acceptance the Transfer Notice (the “First Co-Sale Period”), to participate in the sale of any Transfer Shares to the extent of such Investor’s Pro Rata Co-Sale Share at the same price and upon the same terms and conditions indicated in the Transfer Notice. A failure by any Investor to respond within such prescribed period shall constitute a decision by such Investor not to exercise its right of co-sale as provided herein. To the extent that any Investor does not exercise its right of co-sale to the full extent to sell such Investor’s Pro Rata Co-Sale Share, the Selling Shareholder shall deliver written notice thereof (the “Second Co-Sale Notice”), within two (2) days after the expiration of the Hull 2575 by Standard MarineFirst Co-Sale Period, KNOT to each Investor that elected to the full extent to sell such Investor’s Pro Rata Co-Sale Share (the “Co-Sale Holder”). Each Co-Sale Holder shall have ten (10) Business Days from the date of the Second Co-Sale Notice (the “Second Co-Sale Period”) to notify the Board Selling Shareholder of its desire to participate in the sale for more than its Pro Rata Co-Sale Share, stating the number of the additional shares it proposes to co-sell. Such notice may be made by telephone if followed by a written confirmation within two (2) Business Days from the date of verbal notice. If as a result thereof, such over-allotment exceeds the total number of the remaining shares available for co-sale (for the avoidance of any doubt, the total number of the remaining shares available for co-sale shall mean the remaining Pro Rata Co-Sale Share of all the Investors after the First Co-Sale Period), the over-allotment Co-Sale Holders will be cut back or limited by the Selling Shareholder with respect to their over-allotment to that number of remaining shares equal to the lesser of (a) the number of the additional shares it proposes to co-sell; and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved product obtained by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
multiplying (i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity number of the MLP, an interestremaining shares available for co-bearing promissory note or other form of consideration);
sale by (ii) a fraction the Partnership Group will be entitled to numerator of which is the benefit number of Class A Ordinary Shares (on an as converted basis) held by each over-allotment Co-Sale Holder and the denominator of which is the total number of Class A Ordinary Shares held by the Selling Shareholder plus the total number of Class A Ordinary Shares (on an as converted basis) held by all the over-allotment Co-Sale Holders, on an as converted basis. To the extent one (1) or more of the indemnification contained Investors exercise such right of co-sale in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated accordance with the operation terms and conditions set forth below, the number of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, Transfer Shares that the remaining term of any such indemnification with respect to Selling Shareholder may sell in the Hull 2575 transaction shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedcorrespondingly reduced.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 3 contracts
Sources: Shareholder Agreement, Shareholder Agreements (LexinFintech Holdings Ltd.), Shareholder Agreement (LexinFintech Holdings Ltd.)
Procedures. (a) Not In the event that a Company Group Member enters an agreement to acquire or charter-in any Capesize Vessel in accordance with Section 2.1, then as soon as practicable or in any event not later than 30 3 calendar days after entering an agreement that sets forth the date of acceptance of terms upon which it would acquire or charter-in such Capesize Vessel, such Company Group Member (the Hull 2575 by Standard Marine, KNOT “Acquiring Party”) shall notify the Board Parent in writing and offer the Board Parent (the “Offeree”) the opportunity to cause for any Partnership Parent Group Member to purchase or charter-in such Capesize Vessel (the Hull 2575 Interests for fair market value pursuant “Offered Asset”), on terms no less favorable than those offered to Section 10.1(aor by the Company Group Member, as applicable, plus any applicable Break-up Costs (the “Offer”).
(b) If a Partnership . The Offer shall set forth the Acquiring Party’s proposed terms relating to the purchase or charter-in of the Offered Asset by the applicable Parent Group Member, including any liabilities to be assumed by the applicable Parent Group Member decides as part of the Offer. As soon as practicable after the Offer is made, the Acquiring Party will deliver to exercise the option to purchase Offeree all information prepared by or on behalf of or in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT possession of such exercise, Acquiring Party relating to the fair market value it proposes to pay for Offered Asset and reasonably requested by the Hull 2575 Interests, and the other material terms of the purchaseOfferee. The decision to purchase or charter-in the Hull 2575 Interestsapplicable Offered Asset, the fair market value purchase price or charter hire to be paid and the charter period for the Hull 2575 Interestsapplicable Offered Asset, and the other terms of the purchase or charter shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value independent directors of the Hull 2575 Interests and/or Board and recommended to the other material termsBoard for approval. As soon as practicable, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firmbut in any event, ship broker or other expert advisor to determine the fair market value within 5 calendar days after receipt of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT Offer with respect to a single vessel transaction, or a period of 14 calendar days with respect to a multi-vessel transaction, the Hull 2575 Interests Offeree shall notify the Acquiring Party in writing that either:
(a) The Board has elected not to cause a Parent Group Member to purchase or charter-in such Offered Asset, in which event the Acquiring Party and reasonably requested by such investment banking firmits Affiliates shall, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or subject to the other terms on which of this Agreement, be forever free to continue to own, operate, charter-in or charter-out such Offered Asset, provided that the Partnership Parent shall retain the right of first refusal for such Capesize Vessel or Vessels in Section 2.1 with respect to any purchase option under a charter.; or
(b) The Board has elected to cause a Parent Group Member and KNOT are unable to agree within 30 calendar days purchase such Offered Asset. After receipt by the Acquiring Party of its engagement and furnish the Partnership Board’s election to cause a Parent Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for Offered Asset, the fair market value and Board shall cause such Parent Group Member to purchase the Offered Asset on the other terms determined by set forth in the investment banking firm, ship broker or other expert advisor, Offer as soon as commercially practicable after determinations have such agreement has been madereached.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 3 contracts
Sources: Rights of First Refusal and First Offer Agreement (Seanergy Maritime Holdings Corp.), Rights of First Refusal and First Offer Agreement (United Maritime Corp), Rights of First Refusal and First Offer Agreement (United Maritime Corp)
Procedures. (a) Not later than 30 calendar days after CMRE and York shall, at any time and from time to time within the date of acceptance of the Hull 2575 by Standard MarineNew Build Interest Option Period, KNOT shall notify the Board General Partner and offer the Board General Partner the opportunity right to cause any Partnership Group Member to purchase the Hull 2575 NCP0113 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ Interests, Hull S2121 Interests, Hull S2122 Interests, Hull S2123 Interests, Hull S2124 Interests and Hull S2125 Interests, as applicable (the “Applicable New Build Interests” and the applicable containership vessel, the “Applicable New Build Vessel”) for fair market value pursuant to Section 10.1(a7.1(a); provided, however that, during the relevant New Build Interest Option Period, CMRE and York will be subject to such requirement to provide notice and offer the Applicable New Build Vessel Interests only if, at the time of such notice and offer, the Applicable New Build Vessel constitutes a Five-Year Vessel; provided, further that if, at the end of the New Build Interest Option Period, any Applicable New Build Vessel constitutes a Five-Year Vessel and CMRE and York have not previously notified the General Partner and offered the General Partner the right to cause any Partnership Group Member to purchase the relevant Applicable New Build Vessel Interests, the Partnership Group shall have the right to purchase the relevant Applicable New Build Vessel Interests at the end of the New Build Interest Option Period and CMRE and York shall at that time offer the relevant Applicable New Build Vessel Interests.
(b) If a Partnership Group Member the General Partner decides to exercise the option for a Partnership Group Member to purchase the Hull 2575 Applicable New Build Interests, it will provide, within 24 months 10 business days of receipt of notice and offer to purchase pursuant to Section 10.2(a7.2(a) (or of the last day of the New Build Interest Option Period, if the last proviso of Section 7.2(a) applies), written notice to KNOT CMRE and York of such exercise, exercise and the fair market value it proposes to pay for the Hull 2575 Interests, and Applicable New Build Interests (the other material terms of the purchase“New Build Option Exercise Notice”). The decision to purchase the Hull 2575 Interests, Applicable New Build Interests subject to the New Build Option Exercise Notice and the fair market value to be paid for the Hull 2575 Interests, and Applicable New Build Interests subject to the other terms of the purchase New Build Option Exercise Notice shall be approved initiated and proposed by Management but shall be subject to approval by the Conflicts Committee. If the Partnership Group Member Member, York and KNOT CMRE are unable to agree on the fair market value of the Hull 2575 Applicable New Build Interests and/or that are subject to the other material termsNew Build Option Exercise Notice and the unspecified terms of the New Build Option Exercise Notice during the 30-day period (the “New Build Option Exercise Period”) after receipt by CMRE of the New Build Option Exercise Notice, the Partnership Group Member and KNOT General Partner shall engage appoint a mutually-agreed-upon investment banking firm, ship broker or other expert advisor Shipbroker prior to the fifth business day following the end of the New Build Option Exercise Period to determine the fair market value of the Hull 2575 Applicable New Build Interests and/or the other material unspecified terms on which the Partnership Group Member and KNOT CMRE are unable to agree. Unless otherwise agreed by the parties, the consideration shall be 100% cash. In determining the fair market value of the Hull 2575 Applicable New Build Interests and/or the other material unspecified terms on which the Hull 2575 Applicable New Build Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, Shipbroker will have access to the proposed sale and purchase values and terms for the offer New Build Option Exercise Notice submitted by the Partnership Group Member Member, York and KNOTCMRE, respectively, and to all information prepared by or on behalf of the Partnership Group Member Member, York and KNOT CMRE with respect to the Hull 2575 Applicable New Build Interests and reasonably requested by such investment banking firm, ship broker or other expert advisorShipbroker. Such investment banking firm, ship broker or other expert advisor will Shipbroker shall be required to determine the fair market value of the Hull 2575 Applicable New Build Interests and/or the other unspecified terms on which the Partnership Group Member Member, York and KNOT CMRE are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member Member, York and KNOT CMRE its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, Shipbroker will be divided equally between the Partnership Group Member Member, York and KNOTCMRE. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Applicable New Build Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisorShipbroker, as soon as commercially practicable after such determinations have been made.
(c) If the General Partner chooses to exercise the option for a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Applicable New Build Interests under Section 10.2(b7.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Applicable New Build Interests pursuant substantially in the form of the agreement attached hereto as Annex A. Pursuant to which KNOT such purchase and sale agreement, CMRE shall be obligated to sell the Hull 2575 Applicable New Build Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Applicable New Build Interests from KNOTCMRE. The MLP, York and CMRE agree to and accept the terms of the form of the purchase agreement attached hereto as Annex A, and such terms shall apply to any purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLPNew Build Interests pursuant to this Article VII, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled except to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests extent otherwise mutually agreed by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedParties.
(d) If the General Partner notifies CMRE and York that it chooses not to exercise the option for a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Applicable New Build Interests at the price determined by the investment banking firm, ship broker or other expert advisor Shipbroker under Section 10.2(b7.1(b), all future rights to purchase the Hull 2575 Applicable New Build Interests by the Partnership Group will be extinguished. If the General Partner (i) does not provide CMRE and York with a New Build Option Exercise Notice within 10 business days of receipt of notice and offer to purchase pursuant to Section 7.2(a) (or of the last day of the New Build Interest Option Period, if the last proviso of Section 7.2(a) applies), the General Partner shall be deemed to have chosen not to exercise the option for a Partnership Group Member to purchase the Applicable New Build Interest in accordance with this paragraph (d) and all future rights to purchase the Applicable New Build Interests by the Partnership Group will be extinguished (subject to any purchase rights that may arise under Article V).
Appears in 3 contracts
Sources: Omnibus Agreement, Omnibus Agreement (Costamare Partners LP), Omnibus Agreement (Costamare Partners LP)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 5(a) Not later than 30 calendar hereof. Each Rights Holder shall have thirty (30) days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 5.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such thirty (30) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "Overallotment Notice"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within ten (10) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Series a Preferred Stock and Warrant Purchase Agreement (Gric Communications Inc), Series a Preferred Stock and Warrant Purchase Agreement (Gric Communications Inc)
Procedures. (a) Not later than 30 calendar days after the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver Subject to clause (ii) below, each Elective Exchange of a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will LAZ-MD Class II Interest shall be paid by means of equity effected in accordance with Section 7.4 of the MLPLAZ-MD Operating Agreement and Section 7.05(a) of the New Lazard Group Operating Agreement, an interest-bearing promissory note or other form and each Elective Exchange of consideration);a Lazard Group MD Common Interest shall be effected in accordance with Section 7.05(b) of the New Lazard Group Operating Agreement.
(ii) the Partnership Group will Except as otherwise provided in this clause (ii), each Exchangeable MD Member who shall be entitled to make an Elective Exchange and desires to exchange such member’s Exchangeable Interest (or portion thereof) so exchangeable (an “Electing Member”) shall prepare and deliver to LAZ-MD and each of Lazard Ltd Sub A and Lazard Ltd Sub B a written request signed by such Electing Member (A) stating the benefit amount of Units underlying the indemnification contained in Article XIII of this Agreement for Exchangeable Interest that such Electing Member desires to exchange, (B) stating whether the remaining term of Electing Member shall elect to have such indemnification with respect exchange consummated on the Applicable Exchange Date or the date immediately prior to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition effectiveness of any registration statement of Lazard Ltd that Lazard Ltd may file in order to register the sale by the Electing Member of the Hull 2575 Interests shares of Lazard Ltd Common Stock to be issued in such exchange to such Electing Member (such date, the “Registration Exchange Date”, and the date selected by the Partnership Group Exchanging Member; provided, howeverthe “Exchange Effective Date”), and (C) certifying that such Electing Member is entitled to exchange the remaining term portion of any the Exchangeable Interest that such indemnification with respect member desires to exchange and that such Electing Member is the beneficial owner of such Exchangeable Interest (each such request, an “Exchange Request”). A properly completed Exchange Request must be delivered to LAZ-MD and each of Lazard Ltd Sub A and Lazard Ltd Sub B not less than 60 days or more than 90 days prior to the Hull 2575 anniversary date on which such Electing Member desires to effect the Exchanges in accordance with this Section. Each of Lazard Ltd Sub A and Lazard Ltd Sub B shall have the right to determine whether any Exchange Request is proper or to waive any infraction of these procedures. Once delivered, an Exchange Request shall be irrevocable.
(iii) Each Elective Exchange shall be consummated effective as of the close of Lazard Ltd’s business on the applicable Exchange Effective Date (such time, the “Elective Exchange Effective Time”), and the Electing Member shall be deemed to be not less than three years from have become the closing date holder of record of the acquisition applicable shares of the Hull 2575 Interests by the Partnership Group Member;
Lazard Ltd Common Stock at such Elective Exchange Effective Time (iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above areor, in the reasonable opinion case of an Electing Member who is an Electing LAZ-MD Exchange Member (as defined in the LAZ-MD Operating Agreement), at the time of receipt of such shares of Lazard Ltd Common Stock) and all rights of the Partnership GroupElecting Member in respect of the portion of the Exchangeable Interest so exchanged shall terminate at such Elective Exchange Effective Time. In the event that an Electing Member shall select the Registration Exchange Date as the Exchange Effective Date in accordance with clause (ii) above, unsatisfactory; and
such Elective Exchange shall be null and void (vi) neither KNOT nor and such Electing Member shall continue to hold the applicable Partnership Group Member Exchangeable Interest) in the event that the applicable registration statement shall have any obligation be abandoned by Lazard Ltd prior to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedits effectiveness.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Master Separation Agreement (Lazard LTD), Master Separation Agreement (LAZ-MD Holdings LLC)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Owner written notice of its intention to issue New Securities (a) Not later than 30 calendar the “Rights Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Owner shall have 15 days after from the date of acceptance receipt of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Rights Notice to cause any Partnership Group Member agree in writing to purchase up to such Owner’s Pro Rata Share of such New Securities in cash for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Rights Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Owner’s Pro Rata Share). If any Owner fails to so agree in writing within such 15-day period to purchase such Owner’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Owner who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Holders, at any time within 15 days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Voting and Stockholders’ Agreement (Armstrong Coal Company, Inc.), Voting and Stockholders’ Agreement (Armstrong Energy, Inc.)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, the Company shall first offer such New Securities to each Rights Holder and the Founders (as defined in the Series B Purchase Agreement) in accordance with the following provisions:
(a) Not later than 30 calendar days after The Company shall give to each Rights Holder and Founder a written notice of its intention to issue New Securities (the date “Notice”), describing the type of acceptance of New Securities and the Hull 2575 by Standard Marine, KNOT shall notify price and the Board and offer general terms upon which the Board the opportunity Company proposes to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to issue such New Securities given in accordance with Section 10.1(a)5.1 hereof.
(b) If a Partnership Group Member decides Each Rights Holder shall have twenty (20) days from delivery of such Notice to exercise the option agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of its Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option The Company shall promptly, in writing, inform each Rights Holder that elects to purchase all the Hull 2575 Interests under Section 10.2(b)New Securities available to it (a “Fully-Exercising Holder”) of any other Rights Holder’s failure to do likewise. During the ten (10) day period commencing after such information is given, the applicable parties shall enter into a each Fully-Exercising Holder may elect to purchase and sale agreement for the purchase and sale that portion of the Hull 2575 Interests pursuant New Securities which Nonpurchasing Holders were entitled to which KNOT shall be obligated to sell subscribe but that were not subscribed for by the Hull 2575 Interests Nonpurchasing Holders that is equal to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree proportion that the consideration will be paid by means of equity of the MLP, an interestsuch Fully-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled Exercising Holder’s Pro Rata Share bears to the benefit aggregate Pro Rata Shares of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedall Fully-Exercising Holders.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Energy & Power Solutions, Inc.), Investors’ Rights Agreement (Energy & Power Solutions, Inc.)
Procedures. In the event that the Company proposes to undertake ---------- an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "Notice"), describing the ------ type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall -------------------- forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that it did not so agree to purchase. Each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") shall have a right of over-allotment such ----------------- that such Purchasing Holder may purchase, the fair market value it proposes to pay for the Hull 2575 Interestson a pro rata basis, and the other material terms such portion of the New Securities which any Nonpurchasing Holder elected not to purchase. The decision Company shall take all such action as may be required by any regulatory authority in connection with the exercise by a Purchasing Holder of the right to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, New Securities as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation set forth in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under this Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member3; provided, however, that -------- ------- the remaining term of any such indemnification with respect to the Hull 2575 Company shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant required in connection therewith or as a condition thereto to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, qualify to make do business or to file a general consent to service of process in any state or jurisdiction where it is not so qualified or where it has not made such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtaineda filing.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Asymetrix Learning Systems Inc), Series a Preferred Stock Purchase Agreement (Asymetrix Learning Systems Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities (ain a single transaction or a series of related transactions), it shall give to each Refusal Rights Holder written notice of its intention to issue New Securities (the “Participation Notice”), describing the amount and the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Refusal Rights Holder shall have fifteen (15) Not later than 30 calendar business days after from the date of acceptance receipt of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Participation Notice to cause any Partnership Group Member agree in writing to purchase such Refusal Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase terms and conditions specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Participation Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Refusal Rights Holder’s Pro Rata Share). If any Refusal Rights Holder fails to so agree in writing within such fifteen (15) business day period to purchase such Refusal Rights Holder’s full Pro Rata Share of an offering of New Securities, then such Refusal Rights Holder shall forfeit the right hereunder to purchase that part of its Pro Rata Share of such exerciseNew Securities that it did not so agree to purchase and, if there are any additional Refusal Rights Holders, the fair market value it proposes to pay for additional Refusal Rights Holders may purchase such holder’s Pro Rata Share. Such Refusal Rights Holder shall purchase the Hull 2575 Interests, and portion elected by such Refusal Rights Holder concurrently with the other material terms closing of the purchase. The decision to purchase transaction triggering the Hull 2575 InterestsRight of First Refusal or, in the fair market value event all of the New Securities are being purchased by Refusal Right Purchasers, at a Closing to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree held on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree any mutually agreeable date within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedParticipation Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Series a Convertible Preferred Stock Purchase Agreement, Series a Convertible Preferred Stock Purchase Agreement (Seachange International Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities (ain a single transaction or a series of related transactions), it shall give to each Rights Holder written notice of its intention to issue New Securities (the “Participation Notice”), describing the amount and type of New Securities, the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten (10) Not later than 30 calendar days after Business Days from the date of acceptance receipt of any such Participation Notice (the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity “Participation Period”) to cause any Partnership Group Member agree in writing to purchase up to such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase terms and conditions specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Participation Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so respond in writing within such ten (10) Business Day period, then such Rights Holder shall forfeit the right hereunder to purchase its Pro Rata Share of such exerciseNew Securities, but shall not be deemed to forfeit any right with respect to any other issuance of New Securities. At the expiration of such ten (10) days period, the fair market value Company shall promptly notify each Rights Holder that elects to purchase or acquire all the shares available to it proposes (each, a “Fully Exercising Investor”) of any other Rights Holder’s failure to pay for do likewise. During the Hull 2575 Intereststen (10) day period commencing after the Company has given such notice (the “Extended Participation Period”), and each Fully Exercising Investor may, by giving notice to the other material terms Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the purchase. The decision New Securities for which Rights Holders were entitled to purchase the Hull 2575 Interests, the fair market value to be paid subscribe but that were not subscribed for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If Rights Holders which is equal to the Partnership Group Member proportion that the Ordinary Shares issued and KNOT are unable to agree on the fair market value of the Hull 2575 Interests held, or issuable (directly or indirectly) upon conversion and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisorexercise, as applicable, will have access of Preferred Shares, by such Fully Exercising Investor bears to the proposed sale Ordinary Shares issued and purchase values and terms for the offer submitted by the Partnership Group Member and KNOTheld, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker issuable (directly or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests indirectly) upon conversion and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisorexercise, as applicable, will be divided equally between of the Partnership Group Member and KNOT. Upon receipt of such determinationPreferred Shares then held, the Partnership Group Member will have the option, but not the obligation in by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 7.4 shall occur within the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
later of ninety (c90) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale days of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree date that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 Participation Notice is given and occurring before the date of acquisition initial sale of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted New Securities pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained7.5.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Shareholder Agreement (Adagene Inc.), Shareholder Agreement (Adagene Inc.)
Procedures. (ai) Not later than 30 calendar days after If the date of acceptance Company proposes to issue and sell New Securities pursuant to a bona fide written offer by one or more persons to subscribe for or purchase such New Securities, it shall give written notice to the Investor stating that it intends to accept such offer and issue and sell such New Securities (the “Notice”). The Notice shall set forth (A) a description of the Hull 2575 by Standard MarineNew Securities, KNOT shall notify (B) the Board number or amount of New Securities to be issued and offer sold, (C) the Board cash price or other consideration for the opportunity New Securities and other terms and conditions upon which the Company proposes to cause any Partnership Group Member issue and sell such New Securities, (D) the name and address of each person that has offered to subscribe for or purchase such New Securities and (E) the number or amount of New Securities that Dell and Cisco have elected to purchase (the Hull 2575 Interests number of New Securities to be issued and sold following the exercise or non-exercise, in whole or in part, of Dell’s right of first offer under Section 5.6 of the Dell SPA and Cisco’s right of first offer under Section 5A.3 of the Prior Series F Agreement, the “Remaining New Securities”). The Investor shall have 10 days from the receipt of such Notice to agree to purchase all or any portion of such Remaining New Securities for fair market value pursuant the price and upon the terms and conditions specified in the Notice by giving written notice to Section 10.1(athe Company and stating in such notice the number or amount of Remaining New Securities to be purchased at the price and on the terms and conditions set forth in the Notice (the “Purchase”).
(bii) If a Partnership Group Member decides Promptly following any such agreement by the Investor, the Company and the Investor will proceed to exercise prepare and file with the option appropriate Governmental Authorities all Consents that are necessary in order to purchase consummate the Hull 2575 Intereststransactions contemplated by the Purchase and will diligently and expeditiously prosecute, it and will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT cooperate fully with each other in the prosecution of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madematters.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations Within 10 days after the Investor has obtained from each Governmental Authority all Consents, if any, necessary to consummate the transactions contemplated by the Purchase, including such Consents as may be required under the HSR Act, the Investor and warranties with respect to title to the Hull 2575 Interests and any other such matters as Company shall consummate the Partnership Group Member may approve, which approval will not Purchase. Payment shall be unreasonably withheld;
(iv) KNOT will grant to made by the Partnership Group Member the right, exercisable Investor at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections closing of the Hull 2575 Purchase by wire transfer of immediately available funds and upon delivery of such purchase price, the Company shall issue certificate(s) evidencing such Remaining New Securities to or as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined directed by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguishedInvestor.
Appears in 2 contracts
Sources: Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc), Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc)
Procedures. (ai) Not later than 30 calendar days after In the event that the Company proposes to undertake an issuance of New Securities (in a single transaction or a series of related transactions), it shall give to each Rights Holder written notice of its intention to issue New Securities (the “Participation Notice”), describing the amount and type of New Securities, the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten (10) Business Days from the date of acceptance receipt of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Participation Notice to cause any Partnership Group Member agree in writing to purchase up to such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase terms and conditions specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), First Participation Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so respond in writing within such ten (10) Business Day period, then such Rights Holder shall forfeit the right hereunder to purchase its Pro Rata Share of such exerciseNew Securities, but shall not be deemed to forfeit any right with respect to any other issuance of New Securities. At the expiration of such ten (10) day period, the fair market value Company shall promptly notify each Rights Holder that elects to purchase or acquire all the shares available to it proposes (each, a “Fully Exercising Investor”) of any other Rights Holder’s failure to pay for do likewise. During the Hull 2575 Intereststen (10) day period commencing after the Company has given such notice, and each Fully Exercising Investor may, by giving notice to the other material terms Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the purchase. The decision New Securities for which Rights Holders were entitled to purchase the Hull 2575 Interests, the fair market value to be paid subscribe but that were not subscribed for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If Rights Holders which is equal to the Partnership Group Member proportion that the Ordinary Shares issued and KNOT are unable to agree on the fair market value of the Hull 2575 Interests held, or issuable (directly or indirectly) upon conversion and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisorexercise, as applicable, will have access of Preferred Shares, by such Fully Exercising Investor bears to the proposed sale Ordinary Shares issued and purchase values and terms for the offer submitted by the Partnership Group Member and KNOTheld, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker issuable (directly or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests indirectly) upon conversion and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisorexercise, as applicable, will be divided equally between of the Partnership Group Member and KNOT. Upon receipt of such determinationPreferred Shares then held, the Partnership Group Member will have the option, but not the obligation in by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 7.4 shall occur within the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
later of ninety (c90) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale days of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree date that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 Participation Notice is given and occurring before the date of acquisition initial sale of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted New Securities pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained7.5.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Shareholder Agreements (Belite Bio, Inc), Shareholder Agreements (Belite Bio, Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities (a) Not later than 30 in a single transaction or a series of related transactions), it shall give to each Participation Rights Holder written notice of its intention to issue New Securities (the "Participation Notice"), describing the amount and the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. The Participation Rights Holders shall have 20 calendar days after days, from the date (the "Dispatch Date") that is the latest date of acceptance receipt of the Hull 2575 Participation Notice by Standard Marineany of the Series A Preferred Holders, KNOT shall notify the Board and offer the Board the opportunity i-Hatch, or General Atlantic, to cause any Partnership Group Member agree in writing to purchase the Hull 2575 Interests Participation Rights Holders' Pro Rata Share of such New Securities for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase price and upon the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), terms and conditions specified in the Participation Notice by giving written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, Company and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
stating therein (i) the Partnership Group Member will deliver a cash purchase price quantity of New Securities to be purchased (unless not to exceed the Partnership Group Member Participation Rights Holder's Pro Rata Share), and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) such additional quantity of New Securities the Partnership Group will Participation Rights Holder desires to purchase should any other Participation Rights Holder fail to elect to purchase its entire Pro Rata Share. If a Participation Rights Holder fails to so agree in writing within such 20 calendar days to purchase such Participation Rights Holder's full Pro Rata Share of an offering of New Securities, then the Participation Rights Holder shall forfeit the right hereunder to purchase that part of its Pro Rata Share of such New Securities that it did not so agree to purchase and such forfeiting Participation Rights Holder's Pro Rata Share (or portion thereof) may instead be entitled subscribed for by the other Participation Rights Holders that elected to subscribe for amounts in excess of their Pro Rata Share (such forfeited amount to be divided among them in accordance with their relative Pro Rata Shares up to the benefit amount for which they indicated a willingness to oversubscribe). Each Participation Rights Holder shall purchase the portion it has elected concurrently with the closing of the indemnification contained in Article XIII transaction triggering the Right of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedParticipation.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Preferred Stock Investors Rights Agreement (WiderThan Co., Ltd.), Merger Agreement (WiderThan Co., Ltd.)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 5.1 hereof. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 5.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase up to such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights ▇▇▇▇▇▇’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20)-day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Non-Full Purchasing Holder”), then such Non- Full Purchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Full Purchasing Holder”) written notice of the purchasefailure of any Non-Full Purchasing Holder to purchase such Non-Full Purchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (the “Overallotment Notice”). Each Full Purchasing Holder, other than a Series H Preferred Stockholder (as defined in the Restated Certificate), shall have a right of overallotment such that such Full Purchasing Holder may agree to purchase a portion of the Non-Full Purchasing Holders’ unpurchased Pro Rata Share of such offering on a pro rata basis according to the relative Pro Rata Shares of the Purchasing Rights Holders, at any time within five (5) days after receiving the Overallotment Notice. The decision rights provided in this Section 3 may be assigned or transferred by any Holder that is an investment fund to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days any of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the affiliates, including any affiliated investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madefunds.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Wealthfront Corp), Investors’ Rights Agreement (WEALTHFRONT Corp)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "NOTICE"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten (10) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase up to such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such ten (10) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "NONPURCHASING HOLDER"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "PURCHASING HOLDER") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "OVERALLOTMENT NOTICE"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Handspring Inc), Investors' Rights Agreement (Handspring Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Investor written notice of its intention to issue New Securities (athe "NOTICE"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Investor shall have ten (10) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Investor's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value New Securities to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committeepurchased (not to exceed such Investor's Pro Rata Share). If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access A written notice to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses Company indicating an Investor's intention to exercise its option right of first refusal shall not be binding upon such Investor unless and until the Company obtains binding commitments to purchase all of the Hull 2575 Interests under Section 10.2(bNew Securities specified in the Notice on the terms stated in the Notice. If any Investor fails to so agree in writing within such ten (10) day period to purchase such Investor's full Pro Rata Share of an offering of New Securities (a "NONPURCHASING INVESTOR"), then such Nonpurchasing Investor shall forfeit the applicable parties shall enter into a right hereunder to purchase that part of its Pro Rata Share of such New Securities that he did not so agree to purchase and sale agreement for the Company shall promptly give each Investor who has timely agreed to purchase and sale his full Pro Rata Share of such offering of New Securities (a "PURCHASING INVESTOR") written notice of the Hull 2575 Interests pursuant failure of any Nonpurchasing Investor to which KNOT purchase such Nonpurchasing Investor's full Pro Rata Share of such offering of New Securities (the "OVERALLOTMENT NOTICE"). Each Purchasing Investor shall be obligated have a right of overallotment such that such Purchasing Investor may agree to sell purchase a portion of the Hull 2575 Interests Nonpurchasing Investors' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms relative Pro Rata Shares of the purchase and sale agreement will include Purchasing Investors, at any time within five (5) days after receiving the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedOverallotment Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Silicon Image Inc), Investors' Rights Agreement (Silicon Image Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "NOTICE"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share) and to execute and deliver to the Company such other documentation as may be reasonably required by the Company to demonstrate that such Rights Holder is, at the 136 time of such exerciseoffer of New Securities, an "accredited investor" as defined in Regulation D. If any Rights Holder fails to so agree in writing and to demonstrate such Rights Holder's status as an "accredited investor" within such twenty (20) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "NONPURCHASING HOLDER"), then such Nonpurchasing Holder shall forfeit the fair market value it proposes right hereunder to pay for the Hull 2575 Interests, purchase that part of his Pro Rata Share of such New Securities that he did not so agree to purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities and demonstrated his status as an "accredited investor" (a "PURCHASING HOLDER") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "OVERALLOTMENT NOTICE"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within ten (10) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Macromedia Inc), Agreement and Plan of Reorganization (Macromedia Inc)
Procedures. In the event that a Plains Entity acquires a Restricted Business comprised of assets valued in excess of $10 million, as determined by the Board of Directors of Plains Resources, then not later than 30 days after the consummation of the acquisition by such Plains Entity of the Restricted Business, such Plains Entity shall notify the General Partner of such purchase and offer the Partnership the opportunity to purchase such Restricted Business. As soon as practicable, but in any event, within 30 days after receipt of such notification, the General Partner shall notify the Plains Entity that either (i) the General Partner has elected, with the approval of the Conflicts Committee, not to cause a member of the Partnership Group to purchase such Restricted Business, in which event the Plains Entity shall be free to continue to engage in such Restricted Business, or (ii) the General Partner has elected to cause a member of the Partnership Group to purchase such Restricted Business, in which event the following procedures shall be followed:
(a) Not later than 30 calendar days after The Plains Entity shall submit a good faith offer to the date of acceptance General Partner to sell the Restricted Business (the "Offer") to any member of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase on the Hull 2575 Interests terms and for fair market value pursuant to Section 10.1(a)the consideration stated in the Offer.
(b) If a Partnership Group Member decides to exercise The Plains Entity and the option to purchase the Hull 2575 InterestsGeneral Partner shall negotiate in good faith, it will provide, within 24 months of for 60 days after receipt of notice pursuant such Offer by the General Partner, the terms on which the Restricted Business will be sold to Section 10.2(a)a member of the Partnership Group. The Plains Entity shall provide all information concerning the business, written notice to KNOT operations and finances of such exercise, Restricted Business as may be reasonably requested by the fair market value it proposes to pay for General Partner.
(i) If the Hull 2575 Interests, Plains Entity and the other material General Partner agree on such terms within 60 days after receipt by the General Partner of the purchase. The decision to purchase the Hull 2575 InterestsOffer, the fair market value to be paid for the Hull 2575 Interests, and the other terms a member of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member shall purchase the Restricted Business on such terms as soon as commercially practicable after such agreement has been reached.
(ii) If the Plains Entity and KNOT the General Partner are unable to agree on the fair market value terms of a sale during such 60-day period, the Plains Entity shall attempt to sell the Restricted Business to a Person that is not an Affiliate of the Hull 2575 Interests and/or Plains Entity (a "NonAffiliate Purchaser") within nine months of the other material termstermination of such 60-day period. Any such sale to a NonAffiliate Purchaser must be for a purchase price, as determined by the Board of Directors of Plains Resources, not less than 95% of the purchase price last offered by a member of the Partnership Group.
(c) If, after the expiration of such nine-month period, the Partnership Group Member Plains Entity has not sold the Restricted Business to a NonAffiliate Purchaser, it shall submit another Offer (the "Second Offer") to the General Partner within seven days after the expiration of such nine-month period. The Plains Entity shall provide all information concerning the business, operations and KNOT shall engage a mutually-agreed-upon investment banking firmfinances of such Restricted Business as may be reasonably requested by the General Partner.
(i) If the General Partner, ship broker or other expert advisor to determine with the fair market value concurrence of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable Conflicts Committee, elects not to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf cause a member of the Partnership Group Member and KNOT with respect to pursue the Hull 2575 Interests and reasonably requested by Second Offer, the Plains Entity shall be free to continue to engage in such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine Restricted Business.
(ii) If the fair market value General Partner shall elect to cause a member of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member to purchase such Restricted Business, then the General Partner and KNOT are unable to the Plains Entity shall negotiate the terms of such purchase for 60 days. If the Plains Entity and the General Partner agree on such terms within 30 calendar 60 days after receipt by the General Partner of its engagement and furnish the Second Offer, a member of the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to shall purchase the Hull 2575 Interests for the fair market value and Restricted Business on the other such terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have such agreement has been madereached.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT If during such 60-day period, no agreement has been reached between the Plains Entity and the General Partner or a member of the Partnership, the Plains Entity and the General Partner will provide customary representations engage an independent investment banking firm with a national reputation to determine the value of the Restricted Business. Such investment banking firm will determine the value of the Restricted Business within 30 days and warranties with respect to title furnish the Plains Entity and the General Partner its opinion of such value. The Plains Entity will pay the fees and expenses of such investment banking firm. Upon receipt of such opinion, the General Partner will have the option, subject to the Hull 2575 Interests and any other such matters as approval of the Conflicts Committee, to (A) cause a member of the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and Restricted Business for an amount equal to the related value determined by such investment banking firm or (B) decline to purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above aresuch Restricted Business, in which event the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group Plains Entity will be extinguishedfree to continue to engage in such Restricted Business.
Appears in 2 contracts
Sources: Omnibus Agreement (Plains Resources Inc), Omnibus Agreement (Plains All American Pipeline Lp)
Procedures. (a) Not later than 30 calendar days after In the date event that HPPI proposes to undertake an issuance of acceptance New Securities, it shall give to Mayne Pharma written notice of its intention to issue New Securities (“Notice”), describing the Hull 2575 by Standard Marinetype of New Securities, KNOT shall notify whether the Board offering is private or public, and offer the Board price and the opportunity general terms upon which HPPI proposes to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a)issue such New Securities.
(b) If Mayne Pharma shall have fifteen (15) days from the date of mailing of any such Notice (the “Applicable Period”) to agree in writing that Mayne Pharma and/or members of the Mayne Pharma Group shall purchase all or a Partnership Group Member decides to exercise portion of the option to purchase Mayne Pharma Group’s Pro Rata Share of the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), New Securities for the price and upon the general terms specified in the Notice by giving written notice to KNOT HPPI and stating therein the quantity of such exercise, the fair market value it proposes New Securities to pay for the Hull 2575 Interestsbe purchased, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase HPPI shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access so sell such New Securities to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeMayne Pharma Group.
(c) If a Partnership Group Member chooses With respect to exercise the issuance of shares of New Securities for which Mayne Pharma has not exercised its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests right pursuant to which KNOT this Section 5.4 within the Applicable Period, HPPI shall be obligated have 120 days after the Applicable Period to contract to sell the Hull 2575 Interests such New Securities at a price and upon general terms not more favorable to the Partnership Group Member and purchasers thereof than specified in the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOToriginal Notice. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification Except with respect to the Hull 2575 sale of additional New Securities to Mayne Pharma set forth in Section 5.4(d), if HPPI has not contracted to sell such New Securities within such 120 day period, HPPI shall be deemed not thereafter issue or sell any New Securities without again first offering such New Securities to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted Mayne Pharma pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in this Section 10.1(b) above have not been obtained5.4.
(d) If a Partnership the Mayne Pharma Group Member chooses or is deemed to have chosen not to exercise has exercised its option right to purchase its full Pro Rata Share of New Securities, HPPI shall, within two (2) Business Days of the Hull 2575 Interests at end of said 120 day period, give Mayne Pharma written notice of the price determined number of shares of New Securities for which subscriptions have not been received and accepted, or that the offering was fully subscribed. The Mayne Pharma Group shall thereupon have the additional right to purchase up to that number of New Securities for which subscriptions have not been received and accepted; provided, however, during the Lock-Up Period, any purchase of New Securities by the investment banking firm, ship broker or other expert advisor Mayne Pharma Group purchase under Section 10.2(b5.1 through Section 5.5 shall be made subject to Section 4.1(a); provided, all future rights to further, that no purchase the Hull 2575 Interests of any New Securities by the Partnership Mayne Pharma Group will be extinguishedunder Section 5.1 through Section 5.5 shall require compliance with Section 4.1(b).
Appears in 2 contracts
Sources: Equity Holders Agreement, Equity Holders Agreement (HedgePath Pharmaceuticals, Inc.)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Major Investor a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Major Investor shall have twenty (20) Not later than 30 calendar days after the date from delivery of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity such Notice to cause any Partnership Group Member agree in writing to purchase such Major Investor’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Major Investor’s Pro Rata Share). If any Major Investor fails to so agree in writing within such twenty (20) day period to purchase such Major Investor’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his, her or its Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision Company shall promptly notify in writing the Major Investors who did so elect to purchase such Major Investors’ Pro Rata Share of such New Securities (the Hull 2575 Interests, “Participating Major Investors”) and shall offer such Participating Major Investors the fair market value right to be paid for acquire such unsubscribed shares of New Securities. The Participating Major Investors shall have ten (10) days after receipt of such notice to notify the Hull 2575 Interests, and the other terms Company of its election to purchase all or a portion thereof of the unsubscribed shares of such New Securities. In the event that the Participating Major Investors desire, in the aggregate, to purchase in excess of the total number of unsubscribed shares of such New Securities, then the number of unsubscribed shares that each Participating Major Investor may purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree reduced on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madepro rata basis.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Basis Global Technologies, Inc.), Investors’ Rights Agreement (Basis Global Technologies, Inc.)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Rights Holder shall have ten (10) Not later than 30 calendar business days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 6.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such ten (10) business-day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of such exerciseRights Holder’s Pro Rata Share of such New Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase such Rights Holder’s full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five (5) business days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Zynga Inc), Investors’ Rights Agreement (Zynga Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (the "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have twenty (20) days from the date of mailing of any such Notice to elect in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the price and upon the general terms specified in the Notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so elect in writing within such twenty (20) day period to purchase such Rights Holder's full Pro Rata Share of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such New Securities that he did not so agree to purchase and the Company shall promptly give each Rights Holder who has timely elected to purchase his full Pro Rata Share of such New Securities (a "Purchasing Holder") written notice of the failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the "Overallotment Notice"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to purchase a portion of the Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the relative Pro Rata Shares of the Purchasing Rights Holders, at any time within ten (10) days after receiving the Overallotment Notice. If any Rights Holder notifies the Company of its election to purchase such New Securities within such time period, a closing with respect to such purchase shall be held at the principal office of the Company (or at such other place as may be agreed upon by the Company and the Rights Holder) on a date and at a time which are mutually agreeable to the Company and such Rights Holder, but in no event later than the later to occur of (a) Not later than 30 calendar sixty (60) days after receipt by the Company of such notice of the Rights Holder's election and (b) ten (10) days after the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT any governmental consent or approval necessary for the consummation of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madetransaction.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Netscreen Technologies Inc), Investors' Rights Agreement (Netscreen Technologies Inc)
Procedures. In the event that the Company proposes to undertake ---------- an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "Notice"), describing the ------ type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity on which any such Notice was given to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall -------------------- forfeit the right hereunder to purchase that part of such exercise, the fair market value it proposes Nonpurchasing Holder's Pro Rata Share of such New Securities that such Nonpurchasing Holder did not so agree to pay for the Hull 2575 Interests, purchase; and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase such Rights Holder's full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the purchase. The decision failure ----------------- of any Nonpurchasing Holder to purchase such Nonpurchasing Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "Overallotment Notice"). -------------------- Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Centaur Pharmaceuticals Inc), Investors' Rights Agreement (Centaur Pharmaceuticals Inc)
Procedures. (a) Not Prior to any issuance of any Preemptive Securities, the Company (directly or through its agent) shall deliver to the Sellers a written notice of any proposed or intended issuance of Preemptive Securities (the “Preemptive Notice”), which Preemptive Notice shall (a) identify and describe the Preemptive Securities proposed or intended to be issued, (b) disclose the number, price names of purchasers and other terms upon which they are to be issued, (c) indicate the procedure for the Sellers to offer to purchase the Sellers’ pro rata portion (determined in accordance with this Section 6.2(a)) of such Preemptive Securities, and (d) include a deadline for the Sellers to deliver a Notice of Acceptance and payment of the purchase price for the Sellers’ pro rata portion of Preemptive Securities to be purchased thereby to the Company, which deadline shall in no event be later than 30 calendar days or earlier than 10 Business Days after receipt by the Sellers of the Preemptive Notice; provided, that such deadline may be later than 30 calendar days after the date of acceptance the Preemptive Notice if (i) MatlinPatterson consents thereto in writing, or (ii) outside legal counsel to the Company provides a written opinion addressed to the Company to the effect that a later deadline is required for the Company to comply with applicable law. For purposes of this Section 6.2, the Hull 2575 Sellers’ pro rata portion of Preemptive Securities shall be determined by Standard Marinemultiplying (x) the number of Preemptive Securities (determined on an as exercised or as converted basis) proposed to be issued by (y) a fraction, KNOT shall notify the Board numerator of which is the aggregate number of issued and offer outstanding shares of Class A common stock then beneficially owned by the Board Sellers, and the opportunity to cause any Partnership Group Member to purchase denominator of which is the Hull 2575 Interests for fair market value pursuant to Section 10.1(a)aggregate number of issued and outstanding shares of Class A common stock.
(b) If a Partnership Group Member decides To purchase their pro rata portion of any Preemptive Securities to exercise be issued by the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exerciseCompany, the fair market value it proposes to pay Sellers must deliver a Notice of Acceptance, along with a wire transfer of immediately available funds for the Hull 2575 Interests, and purchase price for such Preemptive Securities to the other material terms of Company (or its agent) in accordance with the purchaseinstructions set forth on the Preemptive Notice prior to the deadline set forth in the Preemptive Notice. The decision Company shall issue to the Sellers that have timely returned a properly completed Notice of Acceptance along with a wire transfer of immediately available funds for the purchase the Hull 2575 Interestsprice, the fair market value to be paid for applicable number of Preemptive Securities in accordance with the Hull 2575 Interests, and terms set forth in the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madePreemptive Notice.
(c) If a Partnership Group Member chooses to exercise its option to In the event that the Company complies with the procedures set forth in this Section 6.2 and the Sellers do not purchase all of their pro rata portion of the Hull 2575 Interests under Section 10.2(b)Preemptive Securities, the applicable parties Company shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests have 180 calendar days from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition the deadline set forth in the applicable Preemptive Notice to issue or sell all or any part of the Hull 2575 Interests Preemptive Securities as to which a Notice of Acceptance has not timely been given by the Partnership Group Member; provided, however, that Sellers to any other purchaser or purchasers (including MatlinPatterson or its Affiliates) upon the remaining term of any such indemnification with respect terms and conditions (including the per share price) which are not more favorable to the Hull 2575 shall be deemed to be purchaser than those set forth in the Preemptive Notice. Any Preemptive Securities not less than three years from the closing date of the acquisition of the Hull 2575 Interests acquired by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title Sellers or any other purchaser or purchasers prior to the Hull 2575 Interests and any other such matters as date that is 180 calendar days after the Partnership Group Member deadline set forth in the applicable Preemptive Notice may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant issued until they are again offered to the Partnership Group Member Sellers under the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is procedures specified in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained6.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Shareholder Agreement (Polymer Group Inc), Shareholder Agreement (Polymer Group Inc)
Procedures. (ai) Not Any holder or holders electing a Repurchase Option pursuant to Section 16(a) shall give written notice of such election (the "Repurchase Notice") to the Company. The Repurchase Notice shall include the name of the holders electing the Repurchase Option (the "Electing Holders") and the number of shares (by holder) that the Company shall be required at that time to repurchase.
(ii) Within five Business Days of its receipt of the Repurchase Notice, the Company shall give written notice to each Electing Holder of the Company's choice of an Independent Financial Expert to prepare the Value Report. Within five Business Days after the date of this notice, Electing Holders owning a majority of the shares identified in the Repurchase Notice shall notify the Company in writing (the "Holders' IFE Notice") of their approval or disapproval of the Company's initial choice of Independent Financial Expert and, in the event of disapproval, such holders shall propose an alternative firm as Independent Financial Expert. Within two Business Days after its receipt of the Holders' IFE Notice, the Company shall notify the Electing Holders of its approval or disapproval of their selection. If the Company does not accept the Independent Financial Expert chosen by the Electing Holders, then the two Independent Financial Experts previously selected pursuant to this section shall promptly be requested by the Company and the Electing Holders to jointly select a firm to act as Independent Financial Expert to prepare the Value Report. Their joint selection, which shall be made within five Business Days, shall be final and binding upon both the Company and the Electing Holders.
(iii) The Company shall consult and cooperate with the selected Independent Financial Expert to facilitate the final delivery of its Value Report no later than 30 sixty calendar days after the date of acceptance of the Hull 2575 by Standard Marine, KNOT Repurchase Notice. The Value Report shall notify be final and binding upon both the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, Company and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeElecting Holders.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant The Company shall pay the Repurchase Price in immediately available funds to the Partnership Group Member holder or holders electing the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections Repurchase Option within sixty calendar days of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities delivery of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedValue Report.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Common Stock Purchase Warrant (Information Management Associates Inc), Common Stock Purchase Warrant (Information Management Associates Inc)
Procedures. (a) Not Subject to at least 14 days prior written notice from the relevant Purchaser stating that any Tax Loss has been or is to be paid or suffered by that Purchaser or any Company or Subsidiary and the amount thereof and of the covenanted payment requested, and for the avoidance of doubt, a failure to give notice within the period set out above shall not cause any claim to fail. Any payment to be made by Sellers pursuant to Section 9.5 shall be made to the relevant Purchaser not later than 30 calendar 5 days prior to the date upon which the Tax (or costs and expenses) is due and payable or where no Tax becomes payable as a result of the loss, reduction or set off of any Tax Asset
(i) which is a Tax Asset shown as an asset in the Effective Date Financial Statements seven days after notice given by the relevant Purchaser to the effect that the Tax Asset would reasonably have been expected to have been paid in cash or set-off against payment of a Tax Liability;
(ii) which is a Tax Asset arising after the Effective Date seven days after the date of acceptance auditors for the time being shall have certified in writing that the Tax Asset would have been used to offset a Tax Liability of the Hull 2575 by Standard Marinerelevant Purchaser, KNOT shall notify the Board and offer relevant Companies or relevant Subsidiaries but for the Board loss or set off of the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a)Tax Asset.
(b) If If, after the relevant Closing Date, any Taxing Authority informs Sellers, on the one hand, or any of the Purchasers, the Companies, or Subsidiaries on the other, of any proposed audit, claim, assessment or other dispute concerning Tax with respect to which Sellers may incur a Partnership Group Member decides liability hereunder, then the Sellers shall inform the relevant Purchaser or the relevant Purchaser shall as soon as practicable (and in any event within 30 days) inform the Sellers, as the case may be, of such matter. Sellers shall not have any obligation to make a payment to a relevant Purchaser under Section 9.5 if such Purchaser shall have failed to timely notify Sellers concerning an audit, claim, assessment or other dispute which failure has a material adverse effect on the Sellers' ability to exercise its rights under this Section 9.7 (b) and Section 8.4 except to the option extent that the Purchasers 107 107 can show that the liability would have arisen even if the Sellers had been able to purchase exercise such rights and in the Hull 2575 Interestsevent that the Parties dispute whether or not the liability, it will provideor the extent to which the liability, within 24 months of receipt of notice pursuant would have arisen but for the failure to Section 10.2(a), written notice to KNOT of such exercisenotify, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase dispute resolution procedures in Section 3.4 shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor apply to determine the fair market value matters. Except to the extent contrary to or inconsistent with this Section 9.7 (b) the provisions of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member Section 8.4 shall apply to this section and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be soldsubject thereto, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, relevant Purchaser shall as soon as commercially practicable after determinations have been madeand, at the Sellers expense (i) give, and shall cause the Companies or Subsidiaries to give the relevant Sellers the opportunity to participate in any audits, disputes, administrative, judicial or other proceedings related to Tax for which the Sellers may be liable hereunder and (ii) allow the Sellers to challenge and litigate, or cause the Companies or Subsidiaries to challenge and litigate, any such audit, claim, assessment or other dispute at their discretion provided that Sellers shall give reasonable consideration to comments and suggestions made by the relevant Purchaser regarding the handling of such contest and provided further that Sellers shall not settle any such audit, claim, assessment or other dispute in a manner which is unduly prejudicial to such relevant Purchaser.
(c) If Any payments made hereunder to a Partnership Group Member chooses Purchaser shall take effect as a reduction in the Final Share Purchase Price provided for in Section 2.3 and any payments made hereunder to exercise its option to purchase the Hull 2575 Interests under Sellers shall take effect as an increase in the Purchase Price.
(d) For the purposes of this Section 10.2(b)9, in the case of any Tax period which begins before and ends after the Effective Date, the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 Effective Date shall be deemed to be not less than three years from the closing date end of the acquisition of the Hull 2575 Interests by the Partnership Group Member;a Tax period.
(iiie) KNOT will provide customary representations and warranties with respect to title to For the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections purposes of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are9, in the reasonable opinion case of any Tax period which begins before and ends after the Partnership GroupClosing Date, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member Closing Date shall have any obligation be deemed to sell or buy be the Hull 2575 if any end of the consents referred to in Section 10.1(b) above have not been obtaineda Tax period.
(df) If The parties agree that for US federal income tax purposes, the income of the Companies and the Subsidiaries which are included in a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase US consolidated Tax Return shall be determined based on a closing of the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.books method in accordance with Treasury Regulation 1.1502-76. 108 108
Appears in 2 contracts
Sources: Share Purchase Agreement (Arrow Electronics Inc), Share Purchase Agreement (Avnet Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Rights Holder shall have ten (10) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 6.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such ten (10) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchasefailure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (the “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to purchase a portion of the Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the relative Pro Rata Shares of the Purchasing Holders, at any time within five (5) days after receiving the Overallotment Notice. The decision rights provided in this Section 3 may be assigned or transferred by any Holder that is a venture capital fund to purchase the Hull 2575 Interestsan affiliated venture capital fund or, the fair market value to be paid for the Hull 2575 Interestsif such Holder is a partnership or limited liability company, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by partners or on behalf retired partners of the Partnership Group Member and KNOT with respect such partnership Holder or to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker members or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt retired members of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madelimited liability company Holder.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Palo Alto Networks Inc)
Procedures. With respect to any offer, sale or other disposition of this Warrant or any Warrant Shares prior to registration of such Warrant or Warrant Shares, the Holder agrees to give written notice to the Company prior thereto, describing briefly the manner thereof, together with evidence, reasonably satisfactory to the Company (awhich shall include such representation of the transferee regarding investment intent as the Company may request, to the effect that such offer, sale or other disposition may be effected without registration or qualification (under the Act as then in effect or any federal or state securities law then in effect) Not of this Warrant or such Warrant Shares and indicating whether or not under the Securities Act certificates for this Warrant or such Warrant Shares to be sold or otherwise disposed of require any restrictive legend as to applicable restrictions on transferability in order to ensure compliance with such law. Upon receiving such written notice and reasonably satisfactory evidence, the Company, as promptly as practicable, but no later than 30 calendar seven (7) days after the date of acceptance receipt of the Hull 2575 by Standard Marinewritten notice, KNOT shall notify the Board and offer Holder that the Board Holder may sell or otherwise dispose of this Warrant or such Warrant Shares, all in accordance with the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision notice delivered to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts CommitteeCompany. If the Partnership Group Member and KNOT are unable Company determines that the evidence is not reasonably satisfactory to agree on the fair market value of the Hull 2575 Interests and/or the other material termsCompany, the Partnership Group Member Company shall so notify the Holder promptly with details thereof after such determination has been made. Notwithstanding the foregoing, any shares of Common Stock issued upon exercise of this Warrant may be offered, sold or otherwise disposed of in accordance with Rule 144 under the Act and KNOT in compliance with the applicable statutory resale restrictions imposed by state securities laws, provided that the Company shall engage have been furnished with such information as the Company may reasonably request to provide a mutually-agreed-upon investment banking firm, ship broker reasonable assurance that the provisions of Rule 144 and the applicable resale restrictions imposed by state securities laws have been satisfied. Each certificate representing this Warrant or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, Warrant Shares thus transferred shall bear a legend as applicable, will have access to the proposed sale and purchase values and terms applicable restrictions on transferability in order to ensure compliance with such laws, unless pursuant to an opinion of counsel for the offer submitted by the Partnership Group Member and KNOTHolder, respectively, and such legend is not required in order to all information prepared by or on behalf of the Partnership Group Member and KNOT ensure compliance with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determinationlaws. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of Company may issue stop transfer instructions to its transfer agent in connection with such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been maderestrictions.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 2 contracts
Sources: Securities Agreement (Skinny Nutritional Corp.), Securities Agreement (Skinny Nutritional Corp.)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities (in a single transaction or a series of related transactions), it shall give to each Rights Holder written notice of its intention to issue New Securities (the “Participation Notice”), describing the amount and type of New Securities, the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have fifteen (15) Business Days from the date of receipt of any such Participation Notice (the “Notice Period”) to agree in writing to purchase up to such Rights Holder’s Pro Rata Share of such New Securities for the price and upon the terms and conditions specified in the Participation Notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so respond in writing within the Notice Period, then such Rights Holder shall forfeit the right hereunder to purchase its Pro Rata Share of such New Securities. Upon the expiration of the Notice Period, the purchaser(s) to which the Company proposes to issue New Securities may, within fifteen (15) Business Days after the expiration of the Notice Period, elect to purchase in aggregate all or any portion of the Available New Securities at the same or higher price and upon non-price terms not more favorable to the purchasers thereof than specified in the Participation Notice (for the purposes of this Section 7.4, the number of “Available New Securities” equals (a) Not later than 30 calendar days after the date total number of acceptance of New Securities that the Hull 2575 by Standard Marine, KNOT shall notify Company intends to issue as described in the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
Participation Notice less (b) If a Partnership Group Member decides to exercise the option number of New Securities that the Rights Holders elect to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to the foregoing). In the event that the purchaser(s) does not elect to purchase in aggregate all of the Available New Securities, immediately after fifteen (15) Business Days of the expiration of the Notice Period, the Company shall promptly notify each Rights Holder that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Shareholder”) of the number of Remaining New Securities (for the purposes of this Section 10.2(a7.4, the number of “Remaining New Securities” equals (x) the total number of New Securities that the Company intends to issue as described in the Participation Notice less (y) the number of New Securities that the Rights Holders and the purchaser(s) elect to purchase pursuant to the foregoing). During the ten (10) day period commencing after the Company has given such notice, written each Fully Exercising Shareholder may, by giving notice to KNOT the Company, elect to purchase or acquire, in addition to the number of such exerciseshares specified above, the fair market value it proposes up to pay for the Hull 2575 Interests, and the other material terms that portion of the purchase. The decision Remaining New Securities which is equal to purchase the Hull 2575 Interestsproportion that the Ordinary Shares issued and held, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests or issuable (directly or indirectly) upon conversion and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisorexercise, as applicable, will have access of Preferred Shares, by such Fully Exercising Shareholder bears to the proposed sale Ordinary Shares issued and purchase values and terms for the offer submitted by the Partnership Group Member and KNOTheld, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker issuable (directly or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests indirectly) upon conversion and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisorexercise, as applicable, will be divided equally between of the Partnership Group Member and KNOT. Upon receipt of such determinationPreferred Shares then held, the Partnership Group Member will have the option, but not the obligation in by all Fully Exercising Shareholders who wish to purchase the Hull 2575 Interests for the fair market value such Remaining New Securities. The closing of any sale pursuant to this Section 7.4 shall occur within one hundred and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
twenty (c120) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale days of the Hull 2575 Interests expiration of the Participation Notice. In the event that the Company has not issued and sold such New Securities within such one hundred and twenty (120) days period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to the Rights Holders pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained7.4.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Shareholder Agreements (Allogene Therapeutics, Inc.)
Procedures. If the Company proposes to undertake an issuance of New Securities, it shall give written notice to each Major Investor of its intention to issue New Securities (a) Not later than 30 calendar the “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Major Investor shall have 20 business days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree to purchase up to such Major Investor’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating in such notice the quantity of New Securities to be purchased (not to exceed such Major Investor’s Pro Rata Share). If any Major Investor fails to so agree in writing within such 20 business day period to purchase all or any portion of such exerciseMajor Investor’s Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right under this Agreement to purchase that part of its Pro Rata Share of such New Securities that such Nonpurchasing Holder did not so agree to purchase. Promptly after the expiration of such 20 business day period, the fair market value it proposes Company shall give each Major Investor who has timely agreed to pay for the Hull 2575 Interests, and the other material terms purchase its full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision number of such New Securities that the Nonpurchasing Holders failed to agree to purchase (the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase “Overallotment Notice”). Each Purchasing Holder shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation purchase such Purchasing Holder’s Pro Rata Share (or any other lesser share agreed to purchase by each Purchasing Holder) of such New Securities at any time within five business days after receiving the Hull 2575 under this Article X and the related purchase and sale agreement if the results of Overallotment Notice. The Company will promptly respond to any searches, surveys, tests or inspections conducted pursuant reasonable information requests made by Major Investors in response to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtaineda Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten (10) Not later than 30 calendar business days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such ten (10) business day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New 51 Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "Overallotment Notice"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five (5) business days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Series D Preferred Stock Purchase Agreement (Niku Corp)
Procedures. (a) Not later than 30 calendar days after Prior to a Public Offering, each time the date of acceptance of Company proposes to issue and sell any Shares, the Hull 2575 by Standard Marine, KNOT Company shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT first make an offering of such exercise, Shares to each Qualified Stockholder in accordance with the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the followingfollowing provisions:
(i) the Partnership Group Member will The Company shall deliver a cash purchase notice by certified mail (a “Preemptive Right Notice”) to the Qualified Stockholders stating (A) its bona fide intention to offer such Shares, (B) the number of such Shares to be offered and (C) the price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLPmaterial terms, an interest-bearing promissory note or other form of consideration);if any, upon which it proposes to offer such Shares.
(ii) Within 15 days after delivery of the Partnership Group will Preemptive Right Notice, each Qualified Stockholder may elect to purchase or obtain, at the price and on the terms specified in the Preemptive Right Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held by such Qualified Stockholder bears to the total number of shares of Common Stock then issued and outstanding by delivering written notice to the Company identifying the number of Shares to be purchased by such Qualified Stockholder. Any notice delivered by a Qualified Stockholder to the Company under this section shall constitute a binding agreement of such Qualified Stockholder to purchase, at the price and on the terms specified in the Preemptive Right Notice, the number of Shares specified in such Qualified Stockholder’s written notice. The Company shall promptly, in writing, inform each Stockholder that purchases all the shares available to it (each, a “Fully Exercising Stockholder”) of any other Stockholder’s failure to do likewise. During the 15-day period commencing after the receipt of such information, each Fully Exercising Stockholder shall be entitled to the benefit obtain that portion of the indemnification contained Shares not subscribed for by the Stockholders that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully Exercising Stockholder bears to the total number of shares of Common Stock then outstanding.
(iii) The Company may, during the 120-day period following the expiration of the period provided in Article XIII subparagraph (b)(ii) above, offer the remaining unsubscribed portion of this Agreement the Shares, if any, to any Person or Persons at a price not less than, and upon terms not materially more favorable to the offeree, than those specified in the Preemptive Right Notice. If the Company does not enter into an agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation sale of the Hull 2575 and occurring before the date of acquisition Shares within such period, or if such agreement is not consummated within 90 days of the Hull 2575 Interests by execution thereof, the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 right provided hereunder shall be deemed to be revived and such Shares shall not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title be offered unless first reoffered to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is Qualified Stockholders in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedaccordance herewith.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. (ai) Not later than 30 calendar days If the Company proposes to undertake any issuance of New Securities, it shall, prior to any such issuance, give written notice to the Investors of its bona fide intention to issue New Securities (the "Company Notice"), describing the type of New Securities proposed to be issued, the total number or quantity of New Securities proposed to be issued, and the price and the general terms upon which the Company proposes to issue such New Securities. Each Investor may elect to purchase or acquire its Pro Rata Share of such New Securities (an "Electing Party") by delivering written notice (the "Participation Notice") of its election to so purchase or acquire such New Securities at the price and upon the general terms specified in the Company Notice and stating the quantity of New Securities to be purchased (not to exceed its Pro Rata Share). The Participation Notice shall be delivered to the Company within five (5) Business Days after the date of acceptance delivery of the Hull 2575 by Standard MarineCompany Notice, KNOT shall notify and the Board and offer obligations of the Board the opportunity to cause any Partnership Group Member Electing Party thereunder to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months elected number or percentage of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 InterestsNew Securities, and the other material terms obligations of the purchase. The decision Company to purchase sell such New Securities to the Hull 2575 InterestsElecting Party, shall be contingent upon the fair market value to be paid for the Hull 2575 Interests, and the other terms consummation of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker sale or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests transaction pursuant to which KNOT the New Securities are proposed to be issued. The number or amount of New Securities specified in the Participation Notice shall be obligated subject to sell automatic and proportionate reduction in the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree event that the consideration will be paid total number or quantity of New Securities sold by means of equity of the MLP, an interest-bearing promissory note Company is reduced below the number or other form of consideration);quantity specified in the Company Notice.
(ii) If any Investor fails to give the Partnership Group will be entitled Participation Notice to the benefit Company within such five (5) Business Day period, or specifies in the Participation Notice that such Investor will only purchase part, but not all, of such Investor's Pro Rata Share (a "Nonpurchasing Investor"), then such Nonpurchasing Investor shall forfeit the right hereunder to purchase that part of its Pro Rata Share of such New Securities that it did not so agree to purchase and the Company shall promptly give each Investor (if any) who has timely agreed to purchase its full Pro Rata Share of such offering of New Securities (a "Purchasing Investor") written notice of the indemnification contained in Article XIII failure of this Agreement for the remaining term any Nonpurchasing Investor to purchase such Nonpurchasing Investor's full Pro Rata Share of such indemnification with respect offering of New Securities (the "Overallotment Notice.") Such Overallotment Notice shall be given to events or conditions associated with the operation each Purchasing Investor within three (3) Business Days of the Hull 2575 and occurring before the date of acquisition expiration of the Hull 2575 Interests by five (5) Business Day period. Each Purchasing Investor shall have a right of overallotment such that such Purchasing Investor may agree to purchase a portion of the Partnership Group Member; provided, however, that the remaining term Nonpurchasing Investor's unpurchased Pro Rata Share of any such indemnification with respect offering on a pro rata basis according to the Hull 2575 shall be deemed to be not less than three years from the closing date relative Pro Rata Shares of the acquisition of Purchasing Investor at any time within three (3) Business Days after receiving the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedOverallotment Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Ribozyme Pharmaceuticals Inc)
Procedures. If the Company proposes to undertake an issuance of New Securities, it shall give written notice to each Rights Holder of its intention to issue New Securities (athe "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value New Securities to be paid for purchased (not to exceed such Rights Holder's Pro Rata Share). Notwithstanding the Hull 2575 Intereststerms set forth in the Notice, and the other terms of the purchase each Rights Holder shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation pay cash for New Securities offered in the Notice. If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the Hull 2575 under this Article X right hereunder to purchase that part of its Pro Rata Share of such New Securities that it did not so agree to purchase and the related Company shall promptly give each Rights Holder (if any) who has timely agreed to purchase and sale agreement if its full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the results failure of any searches, surveys, tests or inspections conducted pursuant Nonpurchasing Holder to paragraph purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (iii) above are, in the reasonable opinion "Overallotment Notice"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to purchase a portion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor Nonpurchasing Holder's unpurchased Pro Rata Share of such offering on a pro rata basis according to the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any relative Pro Rata Shares of the consents referred to in Section 10.1(b) above have not been obtainedPurchasing Rights Holders at any time within five business days after receiving the Overallotment Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. The Company will give Investor written notice (aa “Large Issuance Notice”) Not of its intention to issue New Common Stock in a Large Issuance as soon as practicable, but in no event later than 30 calendar days after the date time authorization for such Large Issuance is granted by the Board; provided that the Company shall not deliver any Large Issuance Notice to the Investor if the Company shall have received an Opt-Out Notice form the Investor, for so long as the Opt- Out Notice remains in effect in accordance with its terms. The Large Issuance Notice shall describe the price (or range of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(aprices), written notice anticipated number of shares of New Common Stock to KNOT of such exercisebe issued, the fair market value it proposes to pay for the Hull 2575 Interests, timing and the other material terms of the purchase. The decision Large Issuance, as well as the number of shares of New Common Stock that Investor is entitled to purchase pursuant to the Hull 2575 Interests, Large Issuance Top Up Right. Investor will have ten (10) Business Days from the fair market value date of the Large Issuance Notice to be paid for advise the Hull 2575 Interests, Company in writing (a “Large Issuance Exercise Notice”) that it intends to exercise its Large Issuance Top Up Right and the other terms applicable number of the purchase shall shares of New Common Stock it determines to acquire. Subject to Section 2.3 below, a Large Issuance Top Up Right may be approved by the Conflicts Committeeexercised in whole or in part. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage Investor delivers a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT Large Issuance Exercise Notice with respect to the Hull 2575 Interests and reasonably requested by such investment banking firma Large Issuance, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, then closing for Investor’s Large Issuance Top Up Right will be divided equally between the Partnership Group Member contingent upon, and KNOT. Upon receipt of such determinationwill take place simultaneously with, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after, the closing of such Large Issuance. If Investor determines that an advance filing is required under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1976 (the “HSR Act”) or any other antitrust law (collectively with the HSR Act, the “Antitrust Laws”) in connection with its acquisition of New Common Stock in a Large Issuance, then closing for Investor’s Large Issuance Top Up Right shall not occur until after determinations all clearances, authorizations, consents, or waiting period expirations or terminations as may be required under any Antitrust Law have been made.
obtained. Failure by Investor to deliver a Large Issuance Exercise Notice within ten (c10) If a Partnership Group Member chooses to exercise its option to purchase Business Days from the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale date of delivery of the Hull 2575 Interests pursuant to which KNOT Large Issuance Notice shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms deemed a waiver of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification Investor’s Large Issuance Top Up Right with respect to events or conditions associated with the operation such Large Issuance. Investor agrees that it will, and will cause each member of the Hull 2575 and occurring before Stockholder Group to, maintain the date confidentiality of acquisition of the Hull 2575 Interests any information included in any Large Issuance Notice delivered by the Partnership Group Member; providedCompany unless otherwise required by law, howeverregulation, government order or subpoena. Investor acknowledges that the remaining term information included in any Large Issuance Notice may constitute material non-public information and effecting an acquisition or disposition of any Company securities while in possession of such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date material non-public information may constitute a violation of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedU.S. federal securities laws.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Stockholder's Agreement (Istar Inc.)
Procedures. (a) Not later If the Company proposes to undertake an issuance of New Securities (other than 30 calendar the Initial Rights Offering, the transactions contemplated by the Securities Purchase Agreement or any Follow On Rights Offering), it shall give written notice to the Stockholder of its intention to issue New Securities (the “ROFO Notice”), describing the type of New Securities and the price and the terms upon which the Company proposes to issue such New Securities. The Stockholder (or its designee) shall have 15 days after the date from receipt of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such ROFO Notice to cause any Partnership Group Member agree to purchase up to the Hull 2575 Interests Stockholder’s Pro Rata Share of such New Securities for fair market value pursuant the price and upon the terms specified in the ROFO Notice by giving written notice to Section 10.1(athe Company and stating in such notice the quantity of New Securities to be purchased (not to exceed the Stockholder’s Pro Rata Share).
(b) If a Partnership Group Member decides the Stockholder (or its designee) fails to exercise the option provide such written notice within such 15 day period or provides written notice that it elects not to purchase all or any portion of the Hull 2575 InterestsNew Securities, it will providethen the Company shall have 90 days from the expiration of the periods set forth above to sell all or any New Securities that were not agreed to be purchased by the Stockholder, within 24 months of receipt of notice pursuant at a price not less than, and upon terms not materially more favorable to Section 10.2(a), written notice to KNOT the purchasers of such exerciseNew Securities than, specified in the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts CommitteeROFO Notice. If the Partnership Group Member Company has not issued and KNOT are unable to agree on sold such New Securities within such period, then after such period the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT Company shall engage a mutually-agreed-upon investment banking firm, ship broker not issue or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT sell any New Securities without again first complying with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madethis ARTICLE IX.
(c) If a Partnership Group Member chooses to exercise the Stockholder (or its option designee) provides written notice within such 15 day period that it elects to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale any or all of the Hull 2575 Interests pursuant New Securities, then the Company and the Stockholder (or its designee) shall promptly thereafter proceed to which KNOT consummate the sale or issuance of New Securities by the Company to the Stockholder (or its designee) on the terms set forth in the ROFO Notice. The Company and its board of directors shall also take all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under the Rights Agreement or any other rights agreement) or other similar anti-takeover provision under the Company’s charter, bylaws or similar charter documents or the laws of its state of incorporation that is or could become applicable to the Company as a result of the Company and the Stockholder (or its designee) consummating any such sale or issuance of New Securities by the Company to the Stockholder (or its designee). Any such sale or issuance to the Stockholder (or its designee) shall be obligated subject to sell the Hull 2575 Interests to the Partnership Group Member compliance with applicable federal and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedstate securities laws.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Rights Holder shall have thirty (30) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 6.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such thirty (30) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it will give at least twenty (a20) Not later than 30 calendar days after prior to the proposed issuance to each Rights Holder written notice of its intention to issue New Securities (the "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder will have fifteen (15) days from the date of acceptance receipt of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such fifteen (15) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder will forfeit the right hereunder to purchase that part of such exercise, the fair market value it proposes Nonpurchasing Holder's Pro Rata Share of such New Securities that such Nonpurchasing Holder did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company will promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "Overallotment Notice"). Each Purchasing Holder will have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or the Purchasing Holders, or such other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters amount as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
Purchasing Holders shall determine among themselves by mutual agreement at any time within five (iv5) KNOT will grant to days after receiving the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedOverallotment Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Investors' Rights Agreement (Quatrx Pharmaceuticals Co)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities (ain a single transaction or a series of related transactions), it shall give to each Participation Rights Holder written notice of its intention to issue New Securities (the "PARTICIPATION NOTICE"), describing the amount and the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Participation Rights Holder shall have ten (10) Not later than 30 calendar business days after from the date of acceptance receipt of any such Participation Notice to agree in writing to purchase such Participation Rights Holder's Pro Rata Share (and any reallotments as provided below) of such New Securities for the price and upon the terms and conditions specified in the Participation Notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased (and any reallotments). If any Participation Rights Holder fails to so agree in writing within such ten (10) business day period to purchase such Participation Rights Holder's full Pro Rata Share of an offering of New Securities, then such Participation Rights Holder shall forfeit the right hereunder to purchase that part of its Pro Rata Share of such New Securities that it did not so agree to purchase. Such Participation Rights Holder shall purchase the portion elected by such Participation Rights Holder concurrently with the closing of the Hull 2575 by Standard Marinetransaction triggering the Right of Participation. Each Participation Rights Holder shall have a right of reallotment such that, KNOT shall notify the Board and offer the Board the opportunity to cause if any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides other Participation Rights Holder fails to exercise the option right to purchase its full Pro Rata Share of the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exerciseNew Securities, the fair market value it proposes other participating Participation Rights Holders may exercise an additional right to pay for the Hull 2575 Interestspurchase, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interestson a pro rata basis, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but New Securities not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madepreviously purchased.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Investor Rights Agreement (Prodeo Technologies Inc)
Procedures. (ai) Not later than 30 calendar days after Subject to clause (ii) below, each Elective Redemption of IBG Holdings Shares shall be effected in accordance with the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a)IBG Holdings Operating Agreement.
(bii) If Except as otherwise provided in this clause (ii), each IBG Holdings Member who shall be entitled to cause the redemption of such IBG Holdings Member’s IBG Holdings Shares (or portion thereof) so redeemable in accordance with Section 4.1(a) hereto (an “Electing Member”) shall prepare and deliver to IBG Holdings and IBGI a Partnership Group written request in the form attached hereto as Exhibit C signed by such Electing Member decides (A) stating the number of IBG Holdings Shares that such Electing Member desires to exercise have redeemed and (B) certifying that such Electing Member is entitled to cause the option redemption of the IBG Holdings Shares specified by such Electing Member and that such Electing Member is the beneficial owner of such IBG Holdings Shares (each such request, a “Redemption Request”). A properly completed Redemption Request must be delivered to purchase IBG Holdings and IBGI not less than 60 days or more than 90 days prior to the Hull 2575 InterestsGeneral Redemption Date on which such Electing Member desires to effect the Elective Redemptions in accordance with this Section 4.1. Once delivered, it will provide, within 24 months of a Redemption Request shall be irrevocable.
(iii) Upon receipt of notice pursuant all Redemption Requests relating to a given General Redemption Date, subject to Section 10.2(a4.3(c), written notice IBGI shall use its commercially reasonable efforts to KNOT consummate a Public Offering of a number of shares of Common Stock (adjusted per Section 5.1) approximately equal to the aggregate number of IBG Holdings Shares specified in such Redemption Requests. Upon consummation of such exercisePublic Offering, IBGI shall purchase from IBG Holdings that number of IBG LLC Shares equal to the fair market value it proposes aggregate number of IBG Holdings Shares specified in such Redemption Requests at a purchase price per share equal to pay for the Hull 2575 Interests, and offering price per share of Common Stock in such Public Offering minus any applicable underwriting discounts or placement agency fees (the other material terms “Public Offering Redemption Price”). IBG LLC shall bear the costs of the purchase. The decision to purchase the Hull 2575 InterestsPublic Offering other than (i) underwriting discounts or placement agency fees, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase which effectively shall be approved borne by the Conflicts Committee. If the Partnership Group Member IBG Holdings Members making such Redemption Requests and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The (ii) legal fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeselling IBG Holdings Members.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Exchange Agreement (Interactive Brokers Group, Inc.)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Investor a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities, given in accordance with Section 8.2 hereof. Each Investor shall have twenty (20) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 8.2 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Investor’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Investor’s Pro Rata Share). If any Investor fails to so agree in writing within such twenty (20) day period to purchase such Investor’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Investor”), then such Nonpurchasing Investor shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Investor who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Investor”) written notice of the purchase. The decision failure of any Nonpurchasing Investor to purchase such Nonpurchasing Investor’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Investor shall have a right of overallotment such that such Purchasing Investor may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Investors’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Investors, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (a) Not later than 30 calendar the “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.2 hereof. Each Rights Holder shall have 20 days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 6.2 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase up to such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such 20 day period to purchase up to such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. (a) Not later than 30 calendar days after At any time and from time to time prior to the date consummation of acceptance of a Qualified IPO, if the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it Company proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 issue any New Ownership Interests, the fair market value Company will give each Preemptive Right Holder prior written notice of such proposal, describing the New Ownership Interests and the price and other terms and conditions upon which the Company proposes to issue the New Ownership Interests (“Company Notice”). Each Preemptive Right Holder will have 10 Business Days from the giving of the Company Notice to provide the Company with a notice of an election to purchase New Ownership Interest (“Election Notice”). In each Election Notice each Preemptive Right Holder shall specify the desired number of New Ownership Interests to be paid for purchased, which shall in no case be greater than the Hull 2575 aggregate number of New Ownership Interests the Company proposes to issue (with each Preemptive Right Holder that indicates a desire to purchase a number of New Ownership Interests in excess of the number of New Ownership Interests such Preemptive Right Holder would be entitled to purchase had all Preemptive Right Holders elected to purchase their full pro rata share of the New Ownership Interest, calculated according to Section 3.5.1 being referred to herein as a “Super Preemptive Right Holder”). Upon receipt of all Election Notices from the Preemptive Right Holders if all Preemptive Right Holders elect to purchase their full pro rata portion of the New Ownership Interest, the Company shall sell to each Preemptive Right Holder the pro rata portion of the New Ownership Interests calculated in accordance with Section 3.5.1. Where less than all of the Preemptive Right Holders elect to purchase their full pro rata portion of the New Ownership Interests, and the other terms Company shall sell to each Preemptive Right Holder their full pro rata portion of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 New Ownership Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisorcalculated in accordance with Section 3.5.1 or, as applicable, will have access such lesser amount any such Preemptive Right Holder elected to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOTand, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determinationthereafter, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties Company shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for allocate the remaining term of such indemnification with respect to events or conditions associated with New Ownership Interests (the operation of “Remaining New Ownership Interests”) among the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member Super Preemptive Rights Holders. Each Super Preemptive Right Holder will have the right to terminate its obligation purchase that number of the Remaining New Ownership Interests equal to the product of (x) the number of the Remaining New Ownership Interests, multiplied by (y) a fraction, the numerator of which is the aggregate number of Units of Membership Interest and Membership Interest Equivalents held by such Super Preemptive Right Holder and the denominator of which is the aggregate number of all of the Units of Membership Interest and Membership Interest Equivalents held by all of the Super Preemptive Rights Holders; provided, that no Super Preemptive Right Holder shall be entitled to purchase in excess of the Hull 2575 under this Article X and number of New Ownership Interests specified in their Election Notice. To the related extent the procedure described in the preceding sentence does not result in the purchase and sale agreement if of all Remaining New Ownership Interests, such procedure shall be repeated until there are no Remaining New Ownership Interests or until the results maximum subscription requests of all such Super Preemptive Right Holders have been fulfilled. The issuance of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 New Ownership Interests by the Partnership Group Company and required payment by the Preemptive Right Holders and the Super Preemptive Right Holders, if any, exercising their Preemptive Rights will occur no earlier than 15 days from the date of the Company Notice. If the Preemptive Right Holders and the Super Preemptive Right Holders, if any, fail to exercise in full their Preemptive Rights, the Company will have 120 days thereafter to sell the New Ownership Interests in respect of which the Preemptive Right Holders’ Preemptive Rights were not exercised, at a price and upon general terms and conditions no more favorable to the purchasers thereof than specified in the Company Notice. If the Company has not sold such New Ownership Interests within such 120 day period provided for in the foregoing sentence, the Company shall not thereafter issue or sell any New Ownership Interests without first offering such securities to the Preemptive Right Holders in the manner provided in this Section 3.5. Notwithstanding the foregoing, the Company will not be extinguishedrequired to offer or sell such New Ownership Interests to any Member if such offer or sale would cause the Company to be in violation of applicable federal or state securities laws by virtue of such offer or sale.
Appears in 1 contract
Sources: Operating Agreement
Procedures. (a) Not The purchase and sale of the Warrants and the Warrant Stock pursuant to a Put Right shall be consummated on a date selected by the Issuer upon at least 10 days' prior written notice to such Holders, which date in no event shall be earlier than the date 5 days, nor later than the date 30 calendar days days, after the date determination of acceptance Fair Market Value (the "Put Closing Date"). On the Put Closing Date, the Issuer shall purchase from the Holders which have given such Put Notice, and each such Holder shall sell to the Issuer, the Warrants and/or the Warrant Stock specified in such Put Notice: (i) in the case of Warrant Stock so purchased, at a purchase price equal to the Put Price Per Unit as of the Hull 2575 Put Notice Date; and (ii) in the case of each Warrant, at a purchase price equal to (A) the product of (1) the Put Price Per Unit as of the Put Notice Date and (2) the number of shares of Warrant Stock for which such Warrant is exercisable as of the Put Notice Date, minus (B) an amount equal to the aggregate Exercise Price as of the Put Notice Date for such number of shares of Warrant Stock. Payment of the purchase price for the Warrants and/or the Warrant Stock so purchased by Standard Marine, KNOT the Issuer shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a)be made by wire transfer in immediately available funds.
(b) If the Issuer is prohibited from purchasing all Warrants and Warrant Stock put to it pursuant to a Partnership Group Member decides Put Notice because (i) of the existence of a contractual restriction or (ii) the Issuer does not have sufficient funds legally available therefor under applicable law, then the Issuer shall give notice (a "Put Response Notice") to exercise each Holder which has delivered such Put Notice of (x) the option reason that it is unable to purchase all Warrants and Warrant Stock put to it pursuant to a Put Notice, including (1) if due to a deficiency, the Hull 2575 Interestscomputation thereof, and/or (2) if due to such a contractual restriction, the nature of the provisions which have been or would be breached and if such provisions are financial covenants, a computation of the amounts or ratios setting forth the deficiencies with respect to such covenants, and (y) the aggregate amount of such Warrants and Warrant Stock, if any, which it will be able to purchase, which Put Response Notice shall be delivered within 10 days of the determination of Fair Market Value and shall be given together with the notice of the Put Closing Date, if any, given by the Issuer pursuant to the first sentence of Section 10.02
(a) if a Put Response is delivered. Each such Holder shall have the right to withdraw its Put Notice by delivering a notice (a "Put Withdrawal Notice") to the Issuer at any time prior to the Put Closing Date or if none is set in the Put Response Notice, prior to the last day on which a Put Closing could occur pursuant to the first sentence of Section 10.02(a). If any such Holders have not timely delivered Put Withdrawal Notices, unless prohibited by a contractual restriction which has not been waived by the requisite Persons, the Issuer thereupon shall purchase from such Holders the aggregate amount of Warrants and Warrant Stock, if any, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of may purchase on such exercise, the fair market value it proposes to pay date with funds legally available under applicable law for the Hull 2575 Interests, and the other material terms of the purchasesuch purpose. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the Such purchase shall be approved allocated among the Holders which have not timely delivered Put Withdrawal Notices pro rata, based on the ratio of the number of Warrant Stock put to the Issuer (including Warrant Stock issuable upon the exercise of Warrants put to the Issuer) by each such Holder to the Conflicts Committeenumber of Warrant Stock put to the Issuer (including Warrant Stock issuable upon the exercise of Warrants put to the Issuer) by all such Holders. If the Partnership Group Member and KNOT are unable to agree on Issuer is prohibited from purchasing any Warrants and/or Warrant Stock upon the fair market value exercise by a Holder of a Put Right for any of the Hull 2575 Interests and/or reasons described in the other material termsfirst sentence of this Section 10.02(b), then the Partnership Group Member Issuer shall use its best efforts to increase its legally available funds under applicable law to an amount sufficient to enable it to purchase legally all Warrants and KNOT shall engage Warrant Stock put to it pursuant to a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, Put Notice and to all information prepared by obtain relief from any contractual restriction in order to enable it to make the required payments, including through effecting a Financing (provided such financing is available on reasonable terms and provided no financing to replace the [high-yield notes] shall be required), obtaining the consent of requisite number of holders of indebtedness or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firmotherwise, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisoreach case, as soon as commercially practicable after determinations have been madepracticable.
(c) If the Issuer is prohibited from purchasing some of or all Warrants and/or Warrant Stock upon the exercise by a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into Holder of a purchase and sale agreement Put Right for the purchase and sale any of the Hull 2575 Interests pursuant to which KNOT reasons described in the first sentence of Section 10.02(b) and such Holder shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
not have timely delivered a Put Withdrawal Notice, then: (i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity Put Price Per Unit for such Holder with respect to such unpurchased Warrants and/or Warrant Stock shall become an accruing liability of the MLPIssuer with interest thereon commencing on the date 10 days after the determination of Fair Market Value as provided above through the date on which the related Warrants and/or Warrant Stock are purchased by the Issuer at a rate per annum equal to 12.5%, an interest-bearing promissory note or other form of considerationcompounded quarterly (such liability and interest being herein called the "Accruing Liability");
; and (ii) such obligation of the Partnership Group will Issuer to purchase shall otherwise be entitled deemed suspended for so long as and only to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, extent that the remaining term Issuer is unable to repurchase such Warrants and/or Warrant Stock after taking all the action described in the last paragraph of Section 10.02(b) (a "Put Postponement"). On any Put Reactivation Date, the Put Price Per Unit for such indemnification with respect to the Hull 2575 Warrants and Warrant Stock shall be deemed to be not less than three years from the closing Accruing Liability. As used herein, "Put Reactivation Date" shall mean a date when the Put Postponement lapses in whole or in part and the obligation of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations Issuer to purchase Warrants and warranties with respect to title Warrant Stock shall no longer be deemed suspended to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted same extent pursuant to paragraph clause (iiiii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in this Section 10.1(b) above have not been obtained10.02(c).
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have fifteen (15) Not later than 30 calendar days after from the date of acceptance deemed delivery of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such fifteen (15) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of such exercise, the fair market value it proposes Holder’s Pro Rata Share of such New Securities that such Holder did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase such Holder’s full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or the other material termsPurchasing Holders, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value at any time within five (5) days after deemed delivery of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. If the Company proposes to undertake an issuance of New Securities, it shall give written notice to each Major Investor of its intention to issue New Securities (a) Not later than 30 calendar the “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Major Investor shall have 20 days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree to purchase such Major Investor’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating in such notice the quantity of New Securities to be purchased (not to exceed such Major Investor’s Pro Rata Share). If any Major Investor fails, within such 20-day period, to agree in writing to purchase such Major Investor’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right under this Agreement to purchase that part of his Pro Rata Share of such exerciseNew Securities that he did not so agree to purchase. Promptly after the expiration of such 20-day period, the fair market value it proposes Company shall give each Major Investor who has timely agreed to pay for the Hull 2575 Interests, and the other material terms purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchasenumber of the Nonpurchasing Holders’ unpurchased Pro Rata Share of such New Securities (the “Overallotment Notice”). The decision Each Purchasing Holder shall have the right to purchase the Hull 2575 Interests, the fair market value such Purchasing Holder’s Pro Rata Share (or any other share agreed to be paid for the Hull 2575 Interests, and the other terms by each Purchasing Holder) of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt Nonpurchasing Holders’ unpurchased Pro Rata Share of such determination, New Securities (the Partnership Group Member will have “Available Shares”) at any time within 10 days after receiving the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group MemberOverallotment Notice; provided, however, that the remaining term of any such indemnification with respect if more than one Purchasing Holder elects to the Hull 2575 purchase Available Shares, then each Purchasing Holder shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X number of Available Shares determined by multiplying the number of Available Shares by a fraction (converted to a percentage), the numerator of which is equal to the number of shares of Fully-Diluted Common Stock then owned by the Purchasing Holder and the related purchase and sale agreement if denominator of which is equal to the results aggregate number of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion shares of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedFully-Diluted Common Stock then owned by all Purchasing Holders.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 4.1 hereof. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 5.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "Overallotment Notice"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. (ai) Not later than 30 calendar days after the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member If Alon Paramount elects to purchase the Hull 2575 Interests for fair market value Option Units pursuant to Section 10.1(a1, Alon Paramount shall deliver to GCEH on or before the last day of the Option Exercise Period a written irrevocable notice (the “Call Exercise Notice”) exercising the Call Right and specifying the number of whole Option Units that Alon Paramount elects to purchase pursuant to the Call Right (the Call Right may not be exercised for fractional Option Units).
(bii) If a Partnership Group Member decides Subject to exercise Section 1(c) below, the option to purchase the Hull 2575 Interests, it will provide, within 24 months closing of receipt any sale of notice Option Units pursuant to this Section 10.2(a), 1 (the “Call Right Closing”) shall take place no later than 30 days following receipt by GCEH of the Call Exercise Notice. Alon Paramount shall give GCEH at least five days written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of closing (the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;“Call Right Closing Date”).
(iii) KNOT GCEH shall, at the Call Right Closing, represent and warrant to Alon Paramount in writing that (A) GCEH has full right, title and interest in and to the Option Units, (B) GCEH has all the necessary power and authority and has taken all necessary action to sell such Option Units as contemplated by this Section 1, (C) no more than 100,000 Units of the Company are outstanding and will provide customary be outstanding on the Call Right Closing Date, (D) the GCEH Interest is the sole Equity Security of the Company outstanding on the Call Right Closing Date, (E) the Option Units are free and clear of any and all Liens or other mortgages, pledges, security interests, options, rights of first offer, encumbrances or other restrictions or limitations of any nature whatsoever other than those arising as a result of or under the terms of this Agreement or the Operating Agreement, and (F) there are no bankruptcy, reorganization or receivership Proceedings pending, being contemplated by or, to GCEH’s knowledge, threatened in writing against GCEH, the Company, or any Affiliate of the Company. Such representations and warranties with respect to title to shall survive the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedCall Right Closing without expiration.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Call Option Agreement (Global Clean Energy Holdings, Inc.)
Procedures. If the Company proposes to undertake an issuance of New Securities, it shall give written notice to each Rights Holder of its intention to issue New Securities (a) Not later than 30 calendar the “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have thirty days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value New Securities to be paid for purchased (not to exceed such Rights Holder’s Pro Rata Share). Notwithstanding the Hull 2575 Intereststerms set forth in the Notice, and the other terms of the purchase each Rights Holder shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation pay cash for New Securities offered in the Notice. If any Rights Holder fails to so agree in writing within such thirty day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the Hull 2575 under this Article X right hereunder to purchase that part of its Pro Rata Share of such New Securities that it did not so agree to purchase and the related Company shall promptly give each Rights Holder (if any) who has timely agreed to purchase and sale agreement if its full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the results failure of any searches, surveys, tests or inspections conducted pursuant Nonpurchasing Holder to paragraph purchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (iii) above are, in the reasonable opinion “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to purchase a portion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor Nonpurchasing Holder’s unpurchased Pro Rata Share of such offering on a pro rata basis according to the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any relative Pro Rata Shares of the consents referred to in Section 10.1(b) above have not been obtainedPurchasing Rights Holders at any time within five days after receiving the Overallotment Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. The Company will give GICRE written notice (aa “Large Issuance Notice”) Not of its intention to issue New Common Stock in a Large Issuance as soon as practicable, but in no event later than 30 calendar days after the date time authorization for such Large Issuance is granted by the Board. The Large Issuance Notice shall describe the price (or range of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(aprices), written notice anticipated number of shares of New Common Stock to KNOT of such exercisebe issued, the fair market value it proposes to pay for the Hull 2575 Interests, timing and the other material terms of the purchase. The decision Large Issuance, as well as the number of shares of New Common Stock that GICRE is entitled to purchase pursuant to the Hull 2575 Interests, Large Issuance Top Up Right. GICRE will have ten (10) Business Days from the fair market value date of the Large Issuance Notice to be paid for advise the Hull 2575 Interests, Company in writing (a “Large Issuance Exercise Notice”) that it intends to exercise its Large Issuance Top Up Right and the other terms applicable number of the purchase shall shares of New Common Stock it determines to acquire. Subject to Section 2.3 below, a Large Issuance Top Up Right may be approved by the Conflicts Committeeexercised in whole or in part. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage GICRE delivers a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT Large Issuance Exercise Notice with respect to the Hull 2575 Interests and reasonably requested by such investment banking firma Large Issuance, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, then closing for GICRE’s Large Issuance Top Up Right will be divided equally between the Partnership Group Member contingent upon, and KNOT. Upon receipt of such determinationwill take place simultaneously with, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b)after, the applicable parties shall enter into closing of such Large Issuance. Failure by GICRE to deliver a purchase and sale agreement for Large Issuance Exercise Notice within ten (10) Business Days from the purchase and sale date of delivery of the Hull 2575 Interests pursuant to which KNOT Large Issuance Notice shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms deemed a waiver of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification GICRE’s Large Issuance Top Up Right with respect to events or conditions associated with the operation such Large Issuance. ▇▇▇▇▇ agrees that it will, and will cause each member of the Hull 2575 and occurring before Stockholder Group to, maintain the date confidentiality of acquisition of the Hull 2575 Interests any information included in any Large Issuance Notice delivered by the Partnership Group Member; provided, however, Company unless otherwise required by law or subpoena. GICRE acknowledges that the remaining term information included in any Large Issuance Notice may constitute material non-public information and effecting an acquisition or disposition of any Company securities while in possession of such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date material non-public information may constitute a violation of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedU.S. federal securities laws.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe "NOTICE"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 4.1 hereof. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 5.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "NONPURCHASING HOLDER"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "PURCHASING HOLDER") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "OVERALLOTMENT NOTICE"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. If Lessee elects option (a) Not later than 30 b), Lessee shall use its best efforts throughout the Sales Period to obtain a purchaser or purchasers for the Units which are not Schedule II-2 affiliated in any way with Lessee. Owner Trustee may direct Lessee to hire and pay for sales agents as directed by Owner Participant. Except as otherwise provided below, any sale by Lessee shall be for the highest cash bid submitted to Lessee, including any bid submitted by Owner Trustee or any Owner Participant. The determination of the highest bid shall be made by Owner Trustee with the consent of the Owner Participant at the end of the Sales Period, except as otherwise provided below. Owner Trustee may accept any bid solicited by Lessee or its agent, in which case Lessee agrees to maintain the Units in accordance with the condition herein provided. Neither Owner Trustee nor any Owner Participant shall have any responsibility for procuring any purchaser. If, nevertheless, Owner Trustee or any Owner Participant undertakes any sales efforts, Lessee shall promptly reimburse Owner Trustee or such Owner Participant for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. To facilitate the sale of the Units and to assure the best possible sales price for the Units, Lessee, at its expense, shall do, at least, all of the following (which, shall be in addition to, and not in limitation of, Lessee's obligations under the Lease, including, without limitation, its obligations to insure the Units and make rental payments). By the last day of the first calendar days month after the date of acceptance commencement of the Hull 2575 Sales Period (the "Redelivery Period"), Lessee at its expense, (i) shall have removed all of the Units from service in the Lessee's business, (ii) shall have tested all of the Units to ensure that they comply with the requirements of Annex III, and (iii) shall have certified to each Owner Participant and Owner Trustee that the Units at that time comply with such requirements. Lessee shall maintain the Units in the condition required by Standard MarineSection 4 during the Sales Period and thereafter until such Units are returned pursuant hereto. Lessee shall allow and pay for unlimited inspection of telemetry logs and other records and testing by potential purchasers, KNOT Owner Trustee and any Owner Participant, and shall notify pay the Board travel costs for all inspectors and offer testers, as well as any fees charged by governmental or industry testing agencies and testing companies. Lessee shall promptly provide any information, records or computer printouts (other than U.S. Government classified information) requested by Owner Trustee, any Owner Participant or potential purchasers, including records of all maintenance of or repair to each Unit prior to or during the Board term of the opportunity Lease and original manufacturers' operating specifications. Lessee shall be responsible for all costs of sale and in order to facilitate a sale shall provide, or cause to be provided, at Lessee's expense, such equipment and ancillary facility configurations, repairs, corrections and modifications as shall be necessary or desirable to Owner Trustee, any Partnership Group Member Owner Participant or any purchaser. If requested, Lessee shall provide financing to one or more qualified creditworthy purchasers at a rate not higher than the purchasers' standard commercial borrowing rates and on standard terms and conditions to enable the purchasers to purchase the Hull 2575 Interests Units and pay cash to the Owner Trustee. On behalf of purchasers, Lessee, at its expense, shall continue to maintain and insure Units until the purchaser's revenue start date, as indicated by the purchaser. Lessee shall inspect and certify that each Unit at the date the Lease terminates meets all such requirements and all requirements of the Lease. During the last year of Schedule II-3 the term of the Lease, Lessee shall not acquire, by purchase, lease or otherwise, and shall prevent any person or entity directly or indirectly controlling, controlled by or in common control with Lessee from acquiring, by purchase, lease or otherwise, more units (or the use of more units) of a type or types similar to the Units unless and only to the extent that Lessee is properly compelled by a court of competent jurisdiction to do so (and Lessee acknowledges and agrees that the Owner Participants may be unwilling to make the Units available to Lessee for fair market value pursuant such purposes). Lessee shall warrant to Section 10.1(a).
Owner Trustee, Owner Participants and any purchaser absolutely and without condition that the Units will be in the condition described in Annex III to this Schedule upon their sale to such purchaser, and that the Units will operate in accordance with their original manufacturers' specifications for at least a period equal to 12 years minus the Term. In addition, Lessee shall warrant to Owner Participants and any purchaser that the fuel on the satellite in which the Units are contained is sufficient to provide for a geosynchronous orbit of such satellite at its orbital position of 123(0) West Longitude (or such other orbital slot as the Federal Communications Commission has approved or required) for at least a period equal to 12 years minus the Term. Lessee shall provide access to the Units for purchasers and Owner Participants, including codes and encryption devices, and take all actions within Lessee's power to cause to be transferred to such purchaser all permits, licenses or other rights or privileges necessary to operate the Units, including but not limited to any Federal Communications Commission position, operating or frequency licenses. If (x) option (b) If is in effect at the end of the Term but Lessee has been unable to sell a Partnership Group Member decides Unit to exercise an unaffiliated person during the Sales Period and (y) the total amount paid by Lessee to Owner Trustee (including any proceeds of sales of Units) pursuant to option (b) at the end of the Lease term is less than the amount specified in option (a), at the option to purchase of the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exerciseOwner Trustee, the fair market value it proposes absolute title to pay for each unsold Unit at the Hull 2575 Interestsend of the Term shall vest in Owner Trustee, free and clear of any rights of redemption or other rights of Lessee, and the other material terms of the purchase. The decision to purchase the Hull 2575 InterestsLessee shall, the fair market value to be paid for the Hull 2575 Interestsat Lessee's expense, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably if requested by Owner Trustee or Owner Participants, do any further acts and execute, acknowledge, deliver, file, register and record any further documents which Owner Trustee or any Owner Participant may reasonably request in order to establish and confirm Owner Trustee's or such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member Owner Participant's title and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been maderights.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Lease (General Communication Inc)
Procedures. The Company will give GICRE written notice (aa “Large Issuance Notice”) Not of its intention to issue New Common Stock in a Large Issuance as soon as practicable, but in no event later than 30 calendar days after the date time authorization for such Large Issuance is granted by the Board. The Large Issuance Notice shall describe the price (or range of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(aprices), written notice anticipated number of shares of New Common Stock to KNOT of such exercisebe issued, the fair market value it proposes to pay for the Hull 2575 Interests, timing and the other material terms of the purchase. The decision Large Issuance, as well as the number of shares of New Common Stock that GICRE is entitled to purchase pursuant to the Hull 2575 Interests, Large Issuance Top Up Right. GICRE will have ten (10) Business Days from the fair market value date of the Large Issuance Notice to be paid for advise the Hull 2575 Interests, Company in writing (a “Large Issuance Exercise Notice”) that it intends to exercise its Large Issuance Top Up Right and the other terms applicable number of the purchase shall shares of New Common Stock it determines to acquire. Subject to Section 2.3 below, a Large Issuance Top Up Right may be approved by the Conflicts Committeeexercised in whole or in part. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage GICRE delivers a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT Large Issuance Exercise Notice with respect to the Hull 2575 Interests and reasonably requested by such investment banking firma Large Issuance, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, then closing for GICRE’s Large Issuance Top Up Right will be divided equally between the Partnership Group Member contingent upon, and KNOT. Upon receipt of such determinationwill take place simultaneously with, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b)after, the applicable parties shall enter into closing of such Large Issuance. Failure by GICRE to deliver a purchase and sale agreement for Large Issuance Exercise Notice within ten (10) Business Days from the purchase and sale date of delivery of the Hull 2575 Interests pursuant to which KNOT Large Issuance Notice shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms deemed a waiver of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification GICRE’s Large Issuance Top Up Right with respect to events or conditions associated with the operation such Large Issuance. GICRE agrees that it will, and will cause each member of the Hull 2575 and occurring before Stockholder Group to, maintain the date confidentiality of acquisition of the Hull 2575 Interests any information included in any Large Issuance Notice delivered by the Partnership Group Member; provided, however, Company unless otherwise required by law or subpoena. GICRE acknowledges that the remaining term information included in any Large Issuance Notice may constitute material non-public information and effecting an acquisition or disposition of any Company securities while in possession of such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date material non-public information may constitute a violation of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedU.S. federal securities laws.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Post Ipo Stockholder’s Agreement (Safety, Income & Growth, Inc.)
Procedures. (a) Not later than 30 calendar days after In the date case of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value each registration or qualification pursuant to Section 10.1(a)15.2, the Company will keep all holders of Series B Preferred Stock, Warrants or Shares advised in writing as to the initiation of proceedings for such registration and qualification and as to the completion thereof, and will advise any such holder, upon request, of the progress of such proceedings.
(b) If At the Company's expense, the Company will keep each registration and qualification under this Section 15 effective (and in compliance with the Securities Act) by such action as may be necessary or appropriate for a Partnership Group Member decides to exercise period of one hundred twenty (120) days after the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT effective date of such exerciseregistration statement, including, without limitation, the fair market value it proposes filing of post-effective amendments and supplements to pay for any registration statement or prospectus necessary to keep the Hull 2575 Interests, registration statement current and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker further qualification under any applicable Blue Sky or other expert advisor state securities laws to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be soldpermit such sale or distribution, the investment banking firm, ship broker or other expert advisor, all as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker holder or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeholders.
(c) If The Company will immediately notify each holder on whose behalf Shares have been registered pursuant to this Section 15, at any time when a Partnership Group Member chooses prospectus relating thereto is required to exercise its option be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration-statement, as then in effect, includes an untrue statement of a material fact or omits to purchase state any material fact required to be stated therein or necessary to make the Hull 2575 Interests statements therein not misleading in light of the circumstances then existing.
(d) The Company will furnish to each holder on whose behalf Shares have been registered pursuant to this Section 15 a signed counterpart, addressed to such holder, of an opinion of counsel for the Company, dated the effective date of such registration statement.
(e) Without limiting any other provision hereof, in connection with any registration of Shares under this Section 10.2(b)15, the Company will use its reasonable best efforts to comply with the Securities Act, the Securities Exchange Act and all applicable parties rules and regulations of the Commission, and will make generally available to its securities holders, as soon as reasonably practicable, an earnings statement covering a period of at least twelve (12) months, beginning with the first month of the first fiscal quarter after the effective date of such registration statement, which earnings statement shall enter into satisfy the provisions of Section 11(a) of the Securities Act.
(f) In connection with any registration of Shares under this Section 15, the Company will provide a purchase transfer agent and sale agreement registrar for the purchase and sale Shares not later than the effective date of such registration statement.
(g) The Company shall not be required to include any of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell holders' Shares in an underwritten offering of the Hull 2575 Interests to Company's securities unless such holders accept the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase underwriting as agreed upon between the Company and sale agreement will the underwriters selected by it, which terms shall include customary provisions with respect to indemnification and contribution and customary representations and warranties by the following:
Company (i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member which shall be made to and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to for the benefit of the indemnification contained underwriters and the holders of Shares to be sold in Article XIII such offering).
(h) In connection with the preparation and filing of each registration statement registering Shares under this Agreement for Section 15, the remaining term Company will give the holders of Series B Preferred Stock, Warrants or Shares on whose behalf such Shares are to be so registered and their underwriters, if any, and their respective counsel and accountants, the opportunity to participate in the preparation of such indemnification with respect to events registration statement, each prospectus included therein or conditions associated filed with the operation Commission, and each amendment thereof or supplement thereto, and will give each of them such access to its books and records and such opportunities to discuss the business of the Hull 2575 Company with its officers, its counsel and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; providedindependent public accountants who have certified its financial statements, however, that the remaining term of any such indemnification with respect to the Hull 2575 as shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above arereasonably necessary, in the reasonable opinion of such holders or such underwriters or their counsel, in order to conduct a reasonable and diligent investigation within the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any meaning of the consents referred to in Section 10.1(b) above have not been obtainedSecurities Act.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Note, Preferred Stock & Warrant Purchase Agreement (Sa Telecommunications Inc /De/)
Procedures. (ai) Not later If the Offering Service Provider desires to sell Unrestricted Incentive Units pursuant to this Section 10.07, such Offering Service Provider shall deliver to the Company not more than 30 calendar ninety (90) days after the date of acceptance termination of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If Service Provider’s employment or other engagement a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT (the “Service Provider Sale Notice”) specifying the number of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value Unrestricted Incentive Units to be paid for sold (the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested “Offered Unrestricted Incentive Units”) by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOffering Service Provider.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) By delivering the Partnership Group will be entitled Service Provider Sale Notice, the Offering Service Provider represents and warrants to the benefit Company that:
(A) the Offering Service Provider has full right, title and interest in and to the Offered Unrestricted Incentive Units;
(B) the Offering Service Provider has all the necessary power and authority and has taken all necessary action to sell such Offered Unrestricted Incentive Units as contemplated by this Section 10.07; and
(C) the Offered Unrestricted Incentive Units are free and clear of any and all liens other than those arising as a result of or under the indemnification contained in Article XIII terms of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;Agreement.
(iii) KNOT will provide customary representations and warranties with respect to title Promptly following receipt of the Service Provider Sale Notice, the Company shall deliver to the Hull 2575 Interests and any other Offering Service Provider a calculation of the Put Purchase Price for the Offered Unrestricted Incentive Units. The Offering Service Provider shall have the right to irrevocably rescind the Service Provider Sale Notice for a period of ten (10) days following the delivery of such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;calculation.
(iv) KNOT will grant Subject to Section 10.07(c) below, the closing of any sale of Offered Unrestricted Incentive Units pursuant to this Section 10.07 shall take place no later than thirty (30) days following receipt by the Company of the Service Provider Sale Notice, if not otherwise rescinded pursuant to Section 10.07(b)(iii) above. Subject to the Partnership Group Member existence of any Delay Condition, the right, exercisable Company shall pay the Put Purchase Price for the Offered Unrestricted Incentive Units by certified or official bank check or by wire transfer of immediately available funds. The Company shall give the Offering Service Provider at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections least ten (10) days’ written notice of the Hull 2575 as date of closing, which notice shall include the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities method of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined payment selected by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguishedCompany.
Appears in 1 contract
Procedures. (a) Not later than 30 calendar days after If the Company intends to undertake an issuance of New Securities, the Company shall issue a written notice (the “First Participation Notice”) to each Persons entitled to the Right of Participation (the “Participation Right Holder”) specifying the amount and price of such New Securities and the general provisions of the subscription of such New Securities. Each Participation Right Holder may exercise the Right of Participation through issuance of a written notice to the Company within fifteen (15) Business Days upon the date of acceptance receipt of any First Participation Notice, and the Participation Right Holder shall specify the quantity of the Hull 2575 by Standard MarineNew Securities which it agrees to subscribe for in accordance with the price, KNOT and terms and conditions specified in the First Participation Notice in such written notice (not to exceed the New Securities which the Participation Right Holder is entitled to subscribe for based on its Pro Rata Share of such Participation Right Holder). If the Participation Right Holder fails to issue the written notice of the exercise of the Right of Participation to the Company within such fifteen (15) Business Days, such Participation Right Holder shall notify the Board and offer the Board the opportunity be deemed to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a)have waived its Right of Participation.
(b) If a Partnership Group Member decides any Participation Right Holder fails or refuses to exercise all of its Right of Participation in accordance with the option subsection (a) above, the Company shall promptly (but no later than three (3) Business Days subsequent to such fifteen (15) Business Days’ period prescribed in the subsection (a) above) send notice (the “Investor Participation Notice”) to each of the Investors who have subscribed for all of the New Securities which such Investor is entitled to subscribe for according to its Pro Rata Share in accordance with the subsection (a) above (the “Participation Investor”). Each Participation Investor may give a written notice to the Company specifying the amount of the New Securities it intends to subscribe for on top of the New Securities which such Investor is entitled to subscribe for according to its Pro Rata Share (the “Investor Additional Quantity”) within five (5) Business Days of the date of receipt of the Investor Participation Notice (the “Investor Participation Period”). Failure of delivery of the written notice of the subscription of the Investor Additional Quantity to the Company within the Investor Participation Period will render the Participation Investor losing the right to purchase the Hull 2575 InterestsInvestor Additional Quantity. If the above conduct leads to the sum of all of the Investor Additional Quantity exceeding the total amount of the remaining New Securities available for subscription, it the Company will providereduce the excess amount of the subscription of the Participation Investor who has made an excess subscription to the following, whichever is less: (A) the Investor Additional Quantity; or (B) the product obtained by multiplying (i) the amount of the remaining New Securities available for subscription; by (ii) a fraction, the numerator of which is the quantity of the Company’s Ordinary Shares (on an as-converted basis) held by such Participation Investor who has made an excess subscription upon the First Participation Notice and the denominator of which is the amount of the Company’s Ordinary Shares (on an as-converted basis) held by all of the Participation Investors who have made excess subscription upon the First Participation Notice. Each Participation Investor shall have the obligation to subscribe for such amount of the New Securities determined by the Company in accordance with this section, and the Company shall notify such Participation Investor within 24 months ten (10) Business days following the date of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeInvestor Participation Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
Upon (i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity expiry of the MLPInvestor Participation Period, an interest-bearing promissory note no Participation Investor has exercised its Right of Participation in accordance with the subsection (b) above, or other form of consideration);
(ii) the Partnership Group will be expiry of the Investor Participation Period, under the circumstances that there still exists remaining New Securities which have not been subscribed by the Participation Investor through the exercise of the Right of Participation, the Company shall promptly (but no later than the three (3) Business Days’ period following such five (5) Business Days’ period prescribed in the subsection (b) above) send notice (the “Second Participation Notice”) to Participation Right Holders (other than the Participation Investors) who has exercised the Right of Participation and purchased all of the New Securities which such Participation Right Holder is entitled to subscribe for according to its Pro Rata Share in accordance with the benefit subsection (b) above (the “Participation Right Persons”). Each Participation Right Person may give a written notice to the Company specifying the amount of the indemnification contained in Article XIII of this Agreement New Securities it intends to subscribe for the remaining term of such indemnification with respect to events or conditions associated with the operation on top of the Hull 2575 and occurring before New Securities which can be subscribed for according to its Pro Rata Share (the “Additional Quantity”) within five (5) Business Days upon the date of acquisition receipt of the Hull 2575 Interests by Second Participation Notice (the Partnership Group Member; provided, however, that “Second Participation Period”). Failure of delivery of the remaining term written notice of any such indemnification with respect the subscription of the Additional Quantity to the Hull 2575 shall be deemed to be not less than three years from Company within the closing date of Second Participation Period will render the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have Participation Right Person losing the right to terminate its purchase the Additional Quantity. If the above conduct leads to the sum of all of the Additional Quantity exceeding the total quantity of the remaining New Securities available for subscription, the Company will reduce the excess amount of the subscription of the Participation Right Person who has made an excess subscription to the following, whichever is less: (A) the Additional Quantity; or (B) the product obtained by multiplying (i) the amount of the remaining New Securities available for subscription; by (ii) a fraction, the numerator of which is the quantity of the Company’s Ordinary Shares (on an as-converted basis) held by such Participation Right Person who has made an excess subscription upon the First Participation Notice and the denominator of which is the quantity of the Company’s Ordinary Shares (on an as-converted basis) held by all of the Participation Right Persons who have made excess subscription upon the First Participation Notice. Each Participation Right Person shall have the obligation to purchase subscribe for such amount of the Hull 2575 under New Securities determined by the Company in accordance with this Article X section, and the related purchase and sale agreement if Company shall notify such Participation Right Person within ten (10) Business Days following the results date of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion receipt of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedSecond Participation Notice.
(d) If Upon (i) the expiry of the Second Participation Period, or (ii) the expiry of the fifteen (15) Business Days’ period upon the receipt of the First Participation Notice, no Participation Right Holder has exercised its Right of Participation in accordance with Section 7.1 (as the case may be), and under the circumstances that the New Securities have not been fully subscribed by the Participation Right Holder through the exercise of the Right of Participation, the Company shall sell the New Securities specified in the First Participation Notice (with respect to the part of New Securities upon which no Party has exercised its Right of Participation) at a Partnership Group Member chooses price of or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at higher than the price determined provided in the First Participation Notice, or on no more favorable terms than that in the First Participation Notice (for non-price terms) within ninety (90) days following the expiry of the related period. If the Company fails to sell such New Securities within such ninety (90) days’ period, the Company shall not sell any New Securities to any Person other than the Participation Right Holder before the re-exercise of the Right of Participation by the investment banking firm, ship broker or other expert advisor under Section 10.2(bParticipation Right Holder in accordance with the subsection (a), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished(b), (c) and (d).
Appears in 1 contract
Sources: Shareholder Agreement (Baozun Inc.)
Procedures. (a) Not later than 30 calendar days after In connection with the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exerciseShelf Registration Statement, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the followingCompany will:
(i) use its best efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof (as indicated in the information furnished to the Company pursuant to Section 4 hereof), and pursuant thereto the Company will prepare and file with the Commission a Shelf Registration Statement relating to the registration on any appropriate form under the Act, which form will be available for the sale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof within the time periods and otherwise in accordance with the provisions hereof. Except for the Common Stock covered by that certain Registration Rights Agreement dated effective June 27, 2000, among the Company, Appaloosa Investment Limited Partnership Group Member I, Palomino Fund, Ltd., Tersk L.L.C., Oppe▇▇▇▇▇▇▇ ▇▇▇ategic Income Fund, Oppe▇▇▇▇▇▇▇ Champion Income Fund, Oppe▇▇▇▇▇▇▇ ▇▇▇h Yield Fund, Oppe▇▇▇▇▇▇▇ Strategic Bond Fund/VA, Atlas Strategic Income Fund and that certain Registration Rights Agreement dated effective August 29, 2000 between the Company and Paribas North America, Inc. (collectively, the "Discount Noteholder Rights Agreement"), the Company will deliver a cash purchase price (not be permitted to include in the Shelf Registration Statement any securities other than the Transfer Restricted Securities. If the registration of the sale of the Transfer Restricted Securities is an underwritten offering and other holders of unregistered Common Stock exercise piggy-back registration rights with respect to such underwritten offering, in the event the managing underwriter determines in its sole discretion that including all of the Common Stock requested to be included in such underwritten offering will jeopardize the success of the offering, unless the Partnership Group Member and KNOT agree that Company is legally obligated to cut back pro rata, the consideration Common Stock requested to be included by the holders of such piggy-back registration rights will be paid by means excluded from such underwritten offering prior to any exclusion therefrom of equity any of the MLP, an interest-bearing promissory note or other form of consideration);Transfer Restricted Securities.
(ii) use its best efforts to keep such Shelf Registration Statement continuously effective and provide all requisite financial statements and any other information for the Partnership Group period specified in Section 3 of this Agreement. Upon the occurrence of any event that would cause any such Shelf Registration Statement or the Prospectus contained therein (i) to contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading or (ii) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company will subject to this Section 5 file promptly (A) an appropriate amendment to such Shelf Registration Statement curing such defect, and, if Commission review is required, use its best efforts to cause such amendment to be entitled declared effective as soon as practicable, (B) a supplement pursuant to Rule 424 under the Act curing such defect or (C) an Exchange Act report incorporated by reference curing such defect.
(iii) prepare and file with the Commission such amendments and post-effective amendments to the benefit Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period set forth in Section 3 hereof, cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, and such other Rules as are applicable to the Prospectus, under the Act in a timely manner; and comply with the provisions of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification Act with respect to events or conditions associated the disposition of all Transfer Restricted Securities covered by such Shelf Registration Statement during the applicable period in accordance with the operation intended method or methods of distribution by the sellers thereof set forth in such Shelf Registration Statement or supplement to the Prospectus.
(iv) advise the Holders and underwriters, if any, promptly and, if requested by such Persons, confirm such advice in writing, (A) when the Shelf Registration Statement or any Prospectus supplement or post- effective amendment has been filed, and, with respect to the Shelf Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Shelf Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the Hull 2575 and occurring before issuance by the date Commission of acquisition any stop order suspending the effectiveness of the Hull 2575 Interests Shelf Registration Statement under the Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto made, misleading.
(v) subject to Section 5(a)(ii), if any fact or event contemplated by Section 5(iv)(D) above will exist or have occurred, prepare a post-effective amendment or supplement to the Shelf Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(vi) deliver to each Holder and underwriter, if any, without charge, a reasonable number of copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Holder or underwriter reasonably may request; the Company hereby consents to the use (in accordance with law) of the Prospectus and any amendment or supplement thereto by each Holder and each underwriter, if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Partnership Group MemberProspectus or any amendment or supplement thereto.
(vii) prior to any offering of Transfer Restricted Securities, cooperate with the Holders in connection with the registration and qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions as reasonably requested and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the Shelf Registration Statement; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval Company will not be unreasonably withheld;required to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Shelf Registration Statement, in any jurisdiction where it is not now so subject.
(ivviii) KNOT in connection with any sale of Transfer Restricted Securities that will grant result in such securities no longer being Transfer Restricted Securities, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends.
(ix) list all shares of Common Stock covered by the Shelf Registration Statement on the principal U.S. securities exchange on which the Common Stock is then listed.
(x) use its best efforts to cause the disposition of the Transfer Restricted Securities covered by the Shelf Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be required to enable the seller or sellers thereof to consummate the disposition of such Transfer Restricted Securities.
(xi) use its best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders with regard to the Partnership Group Member Shelf Registration Statement, as soon as practicable, a consolidated earnings statement meeting the rightrequirements of Rule 158 (which need not be audited) covering a twelve-month period beginning after the Effective Date (as such term is defined in paragraph (c) of Rule 158 under the Act).
(xvii) provide the Holders with a reasonable opportunity to review and comment on any registration statement to be filed pursuant to this Agreement prior to the filing thereof with the Commission, exercisable and will make all changes thereto as any Holder may request in writing to the extent such changes are required, in the judgment of the Company, by the Act.
(xviii) use best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Transfer Restricted Securities for sale in any jurisdiction, at the Partnership Group Member’s risk earliest possible moment.
(xix) use its best efforts to furnish to each Holder and expenseto each managing underwriter, if any, a signed counterpart, addressed to such Holder or such underwriter, if any, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company=s independent public accountants pursuant to SAS 72, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as such Holder or the managing underwriter reasonably requests.
(xx) enter into customary agreements (including underwriting agreements in customary form, which will include "lock-up" obligations as may be requested by the managing underwriters, not to exceed 90 days in duration, but excluding shares that may be issued pursuant to benefit plans or in connection with mergers or acquisitions) and take such other actions (including using its reasonable efforts to make such surveysdomestic road show presentations and otherwise engaging in such reasonable marketing support in connection with any underwritten offering, tests and inspections of including without limitation the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase make its executive officers available for such purpose of so requested by the Hull 2575 under this Article X and selling Holder (a "Road Show")) as are reasonably requested by any selling Holder in order to expedite or facilitate the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted Transfer Restricted Securities covered by a registration statement pursuant to paragraph (iii) above are, an underwritten offering in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedaccordance herewith.
(dxxi) If offer Lehm▇▇ ▇▇▇ opportunity to manage any underwritten offering under this Agreement, subject to the reasonable consent of the Holders of a Partnership Group Member chooses or is deemed majority of the Transfer Restricted Securities to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguishedincluded in such registration.
Appears in 1 contract
Sources: Common Stock Registration Rights Agreement (Chesapeake Energy Corp)
Procedures. (ai) Not later than 30 calendar Each director of the Company shall hold office for a term expiring at the next annual meeting of stockholders. Any vacancy caused by the death or resignation of a Preferred Director may be filled only by the holders of Preferred Stock entitled to vote for such Preferred Director. A special meeting of the holders of the Preferred Stock entitled to vote with respect to filling the vacancy shall be called and held as promptly as practicable after any such death or resignation at the direction of a majority of the board of directors, and in any event shall be called within ten days, to be held within 15 days, after receipt of a written request by the holders of record of at least 50% of the then outstanding shares of Preferred Stock so entitled to vote. In connection with any special meeting to be held for the purpose of electing a Preferred Director to fill a vacancy, only such holders of the Preferred Stock entitled to vote for such Preferred Director shall be notified and be permitted to participate at such meeting. If any special meeting of the holders of Preferred Stock required to be called for the election of directors pursuant to this section 6(c) shall not have been called within ten days after the date of acceptance request therefor has been made upon the secretary of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exerciseCompany, the fair market value it proposes holders of record of at least 50% of the then outstanding shares of the Preferred Stock so entitled to pay for vote may designate in writing one of their number to call the Hull 2575 Interestsmeeting, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to meeting may be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved called by the Conflicts Committeeperson so designated upon notice in accordance with the notice required for annual meetings of stockholders. If the Partnership Group Member and KNOT are unable to agree on the fair market value Any holder of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shares of Preferred Stock so designated shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms stock record books of the Company for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf purpose of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determinationso calling a special meeting. The fees and Company shall pay the reasonable expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member calling and KNOT. Upon receipt of holding any such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been mademeeting.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) Any special meeting of the Partnership Group will holders of shares of Preferred Stock to vote for the election of directors pursuant to this section 6(c) shall be held in the city in which the next preceding annual meeting of stockholders of the Company was held. At a special or annual meeting for the election of directors by the holders of shares of Preferred Stock, the presence in person or by proxy of the holders of 50% of the outstanding shares of Preferred Stock entitled to vote thereon shall constitute a quorum. In connection with any special meeting to be held for the benefit purpose of electing a Preferred Director to fill a vacancy, only such holders of the indemnification contained Preferred Stock entitled to vote for such Preferred Director shall be notified and be permitted to participate at such meeting. A majority of the holders of the shares of Preferred Stock entitled to vote thereon present in Article XIII of this Agreement person or by proxy shall have the power to adjourn the meeting for the remaining term purpose of such indemnification with respect election, from time to events or conditions associated with time without notice, other than announcement at the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; providedmeeting, however, that the remaining term of any such indemnification with respect to the Hull 2575 until a quorum shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;present.
(iii) KNOT will provide customary representations In connection with any vote for the Preferred Directors, each holder of Preferred Stock entitled to vote thereon as provided herein shall be entitled to one vote per share, and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections nominees receiving a plurality of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right votes entitled to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member be cast shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedbe elected.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Governance Agreement (Huff Alternative Income Fund Lp)
Procedures. If the Company proposes to undertake an issuance of New Securities, it shall give written notice to each Rights Holder of its intention to issue New Securities (a) Not later than 30 calendar the “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have thirty days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value New Securities to be paid for purchased (not to exceed such Rights Holder’s Pro Rata Share). Notwithstanding the Hull 2575 Intereststerms set forth in the Notice, and the other terms of the purchase each Rights Holder shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation pay cash for New Securities offered in the Notice. If any Rights Holder fails to so agree in writing within such ten day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the Hull 2575 under this Article X right hereunder to purchase that part of its Pro Rata Share of such New Securities that it did not so agree to purchase and the related Company shall promptly give each Rights Holder (if any) who has timely agreed to purchase and sale agreement if its full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the results failure of any searches, surveys, tests or inspections conducted pursuant Nonpurchasing Holder to paragraph unpurchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (iii) above are, in the reasonable opinion “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to purchase a portion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor Nonpurchasing Holder’s unpurchased Pro Rata Share of such offering on a pro rata basis according to the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any relative Pro Rata Shares of the consents referred to in Section 10.1(b) above have not been obtainedPurchasing Rights Holders at any time within five days after receiving the Overallotment Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. (a) Not later than 30 calendar The General Partner shall notify TMG in writing during the Option exercise period that either (i) the General Partner has elected, with the approval of the Conflicts Committee, not to cause a Partnership Group Member to exercise such Option, in which case the TMG Entities may own, operate or Transfer the Option Assets subject to the Option without any further obligation to offer such Option Assets to the Partnership (including pursuant to Article IV), or (ii) the General Partner, with the approval of the Conflicts Committee, wishes to cause a Partnership Group Member to exercise the Option, subject to the negotiation of the terms of the exercise of such Option pursuant to the provisions of Section 3.2(b). If during the exercise period the General Partner notifies TMG that it wishes to cause a Partnership Group Member to exercise the Option, then within 45 days after such notification, TMG shall submit a term sheet (an “Option Term Sheet”) to the date of acceptance General Partner containing the fundamental terms (other than purchase price) on which it would be willing to sell (or to cause another TMG Entity to sell) the Option Assets, including any proposed commitments from the TMG Entities, if any.
(b) Within 45 days after delivery of the Hull 2575 Option Term Sheet, the General Partner shall submit to TMG, on behalf of the Partnership and with the concurrence of the Conflicts Committee, the cash purchase price (the “Proposed Option Price”) it is willing to cause a Partnership Group Member to pay for the Option Assets. Thereafter, TMG and the Conflicts Committee shall negotiate the terms of the purchase and sale in good faith for 60 days. If TMG and the Conflicts Committee are unable to agree on such terms during such 60-day period, TMG may attempt to sell the Option Assets to a person who is not an Affiliate of TMG within six months of the termination of such 60-day period, provided that the purchase price for such Option Assets may not be less than 105% of the Proposed Option Price and otherwise shall be on terms that are not materially more favorable to the proposed purchaser than the terms specified in the Option Term Sheet submitted by Standard MarineTMG pursuant to Section 3.2(a) with respect to the Option Assets, KNOT shall notify in each case as determined by written resolution of the Board of Directors of TMG. If no sale to a non-Affiliate occurs within such six-month period, the General Partner shall have the right (but not the obligation) to cause, on behalf of the Partnership and offer with the Board concurrence of the opportunity to cause any Conflicts Committee, a Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant Option Assets at the Proposed Option Price and otherwise upon the terms specified in the Option Term Sheet. The General Partner shall notify TMG of its intent to Section 10.1(a).
(b) If cause a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, Option Assets at the Proposed Option Price within 45 days of the expiration of such six-month period or such earlier date on which TMG notifies the General Partner that it will provide, no longer pursue a sale to a non-Affiliate. If the General Partner either (A) fails to respond within 24 months of receipt of notice pursuant to Section 10.2(a), such 45-day period or (B) rejects the opportunity by written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase General Partner, with the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms approval of the purchase shall be approved by the Conflicts Committee. If , to TMG, then the TMG Entities may own, operate or Transfer the Option Assets without any further obligation to offer the Option Assets to the Partnership Group Member and KNOT are unable (including pursuant to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeArticle IV).
(c) If requested by the General Partner, TMG shall use commercially reasonable efforts to obtain financial statements with respect to the Option Assets purchased by a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests as required under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interestRegulation S-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests X promulgated by the Partnership Group Member; provided, however, that the remaining term of Securities and Exchange Commission or any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedsuccessor statute.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake ---------- an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "Notice"), describing the ------ type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten (10) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity receiving any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such ten (10) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right --------------------- hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the purchase. The decision failure ----------------- of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "Overallotment Notice"). -------------------- Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Major Investor a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 5.2. Each Major Investor shall have ten (10) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 5.2 based upon the manner or method of notice, to exercise the option agree in writing to purchase such Major Investor’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Major Investor’s Pro Rata Share). At the expiration of such exerciseten (10) day period, the fair market value Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it proposes (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to pay for do likewise. During the Hull 2575 Intereststen (10) day period commencing after the Company has given such notice, and each Fully Exercising Investor may, by giving notice to the other material terms Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the purchase. The decision New Securities for which Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of the Company’s Common Stock issued or issuable upon conversion of the Shares owned by such Fully Exercising Investor then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion of the Shares then held, by all Fully Exercising Investors who wish to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeunsubscribed shares.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Investors’ Rights Agreement
Procedures. (a) Not later than 30 calendar days after If the date TCI Partner exercises the Early Put, the TCI Partner, with its notice of acceptance of the Hull 2575 by Standard Marineexercise, KNOT shall notify the Board and offer Adelphia General Partner in writing of its choice of the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to transactions specified in Section 10.1(a13.2.1(b).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of . Within 30 days after receipt of such notice pursuant to Section 10.2(a)from the TCI Partner specified in the preceding sentence, the Adelphia General Partner shall provide written notice to KNOT the TCI Partner as to whether it will implement the transaction designated by the TCI Partner or whether it elects to pursue one of such exercise, the fair market value it proposes to pay for the Hull 2575 Interestsother transactions specified in Section 13.2.1(b), and the other material terms including, if applicable, designation of the purchase. The decision which Redemption Systems (as hereinafter defined) it would choose to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committeeuse in connection with such transactions. If the Partnership Group Member and KNOT are unable to agree on transaction elected by the fair market value Adelphia General Partner is not the transaction designated by the TCI Partner, then at the expiration of the Hull 2575 Interests and/or 20 day period after receipt of such notice from the other material termsAdelphia General Partner, unless the TCI Partner sends written notice within such 20 day period to the Adelphia General Partner that it elects to pursue the transaction designated by the Adelphia General Partner, the Partnership Group Member Early Put shall be automatically rescinded and KNOT the Partners shall engage a mutually-agreed-upon investment banking firmhave no obligation in connection therewith. If the Adelphia General Partner chooses the transaction designated by the TCI Partner, ship broker or other expert advisor if the TCI Partner notifies the Adelphia General Partner that it elects to determine pursue the fair market value of transaction designated by the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be soldAdelphia General Partner, thereafter, the investment banking firm, ship broker or other expert advisorPartners (and, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOTTCI Parent, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value owners of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses stock of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member TCI Owners) shall negotiate in good faith and KNOT. Upon receipt shall use commercially reasonable efforts for a period of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests 45 days from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition notice from the Adelphia General Partner of its election to pursue the Hull 2575 Interests transaction designated by the Partnership Group Member; providedTCI Partner or the notice from the TCI Partner of its election to pursue the transaction designated by the Adelphia General Partner, howeveras the case may be, that to determine the remaining term terms and conditions of any such indemnification with respect transaction and to enter into appropriate arrangements implementing the same. If, after negotiating in good faith and using commercially reasonable efforts, the parties are unable within the 45 day period referred to above to reach agreement as to the Hull 2575 aforementioned terms and conditions, the Early Put shall be deemed to be not less than three years from automatically rescinded and the closing date Partners shall have no obligation in connection therewith. The TCI Partner may, after the expiration of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
12 months following any rescission permitted hereunder (iii) KNOT will provide customary representations and warranties with respect to title but prior to the Hull 2575 Interests and any other such matters as seventh anniversary after the Partnership Group Member may approvedate hereof), again elect the Early Put, in which approval will not be unreasonably withheld;
(iv) KNOT will grant event the provisions of this Section 13.2 relating to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member Early Put shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedagain be applicable.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Partnership Agreement (Adelphia Communications Corp)
Procedures. (a) Not later From time to time during the Funding Period only, but no more frequently than 30 three (3) times per calendar days after week, Seller may request that Buyer enter into a proposed Transaction by sending Buyer a notice (i) describing the date of acceptance Transaction and each proposed Asset and any related Underlying Mortgaged Property and other security therefor in reasonable detail, (ii) transmitting a complete Underwriting Package for each proposed Asset, and (iii) specifying which (if any) of the Hull 2575 representations and warranties of Seller set forth in this Agreement (including in Schedule 1) Seller will be unable to make with respect to such Asset. Seller shall promptly deliver to Buyer any supplemental materials requested at any time by Standard Marine▇▇▇▇▇. Buyer shall conduct such review of the Underwriting Package and each such Asset as Buyer determines appropriate. Buyer shall determine whether or not it is willing to purchase any or all of the proposed Assets, KNOT shall notify and if so, on what terms and conditions. It is expressly agreed and acknowledged that ▇▇▇▇▇ is entering into the Board Transactions on the basis of all such representations and offer warranties and on the Board completeness and accuracy of the opportunity information contained in the applicable Underwriting Package, and any incompleteness or inaccuracies in the related Underwriting Package will only be acceptable to cause any Partnership Group Member Buyer if disclosed in writing to Buyer by Seller in advance of the related Purchase Date, and then only if Buyer opts to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a)related Asset from Seller notwithstanding such incompleteness and inaccuracies.
(b) If Buyer shall give Seller notice of the date when ▇▇▇▇▇ has received a Partnership Group Member decides complete Underwriting Package and supplemental materials as Buyer may request. Buyer shall endeavor to exercise the option communicate to Seller a preliminary non-binding determination of whether or not it is willing to purchase the Hull 2575 Interestsany or all of such Assets, it will provideand if so, on what terms and conditions, within 24 months five (5) Business Days (or, if more than one Asset is proposed, and not yet approved, within ten (10) Business Days) of such date. Buyer shall endeavor to communicate to Seller a final non-binding determination of whether or not it is willing to purchase any or all of such Assets and if so, on what terms and conditions, within five (5) Business Days (or, if more than one Asset is proposed, and not yet approved, within ten (10) Business Days) of Buyer’s receipt of notice pursuant all supplemental due diligence documents and information as Buyer may request. If Buyer has not communicated its final non-binding indication to Section 10.2(a)Seller by such date, written notice Buyer shall automatically and without further action be deemed to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision have determined not to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by any such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeAsset.
(c) If Buyer, in its discretion, communicates to Seller a Partnership Group Member chooses to exercise its option final non-binding determination that it is willing to purchase any or all of such Assets, Seller shall deliver to Buyer a preliminary Confirmation for such Transaction, describing each such Asset and its proposed Purchase Date, Market Value, Applicable Percentage, Purchase Price and such other terms and conditions as Buyer may require. If Buyer requires changes to the Hull 2575 Interests under Section 10.2(b)preliminary Confirmation, Seller shall make such changes as are reasonably acceptable to Seller, and if acceptable to Seller, execute the applicable parties shall preliminary Confirmation. If Buyer, in its discretion, determines to enter into a the Transaction on the terms described in the preliminary Confirmation, Buyer shall notify Seller that it intends to purchase such Asset on the Purchase Date. Buyer shall execute and sale agreement for return the Confirmation to Seller on the Purchase Date, which shall thereupon become effective as the Confirmation of the Transaction. Buyer’s approval of the purchase of an Asset on such terms and sale conditions as Buyer may require shall be evidenced only by its execution and delivery of the Hull 2575 Interests pursuant related Confirmation. For the avoidance of doubt, Buyer shall not (i) be bound by any preliminary or final non-binding determination referred to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall above, or (ii) be obligated to purchase an Asset notwithstanding a Confirmation executed by the Hull 2575 Interests from KNOT. The Parties unless and until all applicable conditions precedent in Article 6 have been satisfied or waived by ▇▇▇▇▇.
(d) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the purchase Transaction covered thereby, and sale agreement will include shall be construed to be cumulative to the followingextent possible. If terms in a Confirmation are inconsistent with terms in this Agreement with respect to a particular Transaction, the Confirmation shall prevail. Whenever the Applicable Percentage, Excess Funding Capacity, Reallocation or any other term of a Transaction (other than the Pricing Rate and Market Value) with respect to an Asset is revised or adjusted in accordance with this Agreement, an amended and restated Confirmation reflecting such revision or adjustment and that is otherwise acceptable to the Parties shall be prepared by Seller and executed by the Parties.
(e) The fact that Buyer has conducted or has failed to conduct any partial or complete examination or any other due diligence review of any Asset or Purchased Asset shall in no way affect any rights Buyer may have under the Repurchase Documents or otherwise with respect to any representations or warranties or other rights or remedies thereunder or otherwise, including the right to determine at any time that such Asset or Purchased Asset is not an Eligible Asset.
(f) No Transaction shall be entered into if (i) any unsatisfied Margin Call, Default or Event of Default exists or would exist as a result of such Transaction, (ii) the Repurchase Date for the Purchased Assets subject to such Transaction would be later than the Facility Termination Date, or (iii) after giving effect to such Transaction, the aggregate Purchase Price of all Purchased Assets subject to Transactions then outstanding would exceed the Maximum Amount.
(g) Notwithstanding any of the foregoing provisions of this Section 3.01 or any contrary provisions set forth in the Custodial Agreement, solely with respect to any Table Funded Purchased Asset:
(i) Not later than 10:00 a.m. (New York City time) on the Partnership Group Member will related Purchase Date, (A) Seller or Bailee shall deliver to Buyer by email executed .pdf copies of the Mortgage Loan Documents, Bailee Agreement, Bailee Trust Receipt and Supplemental Escrow Letter (if applicable) and (B) Seller shall deliver the appropriate written third party wire transfer instructions to Buyer. If Buyer has determined that all other applicable conditions in this Agreement, including without limitation those set forth in Section 6.02 hereof, have been satisfied, and otherwise has agreed to purchase the related Table Funded Purchased Asset, Buyer shall (I) execute and deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity .pdf copy of the MLPrelated Confirmation to Seller and Bailee via email and (II) wire funds in the amount of the related Purchase Price for the related Table Funded Purchased Asset in accordance with the wire transfer instructions that were previously delivered to Buyer by Seller or are in the Supplemental Escrow Letter, an interest-bearing promissory note or other form of consideration);as applicable.
(ii) Within five (5) Business Days after the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification applicable Purchase Date with respect to events any Table Funded Purchased Asset, Seller or conditions associated Bailee shall deliver (A) to Custodian, the complete Mortgage Asset File with respect to such Table Funded Purchased Asset, pursuant to and in accordance with the operation terms of the Hull 2575 Custodial Agreement, and occurring before (B) to Buyer, the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification complete Underwriting Package with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests related Table Funded Purchased Assets purchased by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedBuyer.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Cim Real Estate Finance Trust, Inc.)
Procedures. (aThe Company may exercise its right to repurchase under Section 5.1(a) Not later than 30 calendar days after above, and the date of acceptance of the Hull 2575 Management Shareholder may exercise his right to put his shares under Section 5.1(b) above, by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), giving written notice to KNOT of such exercise, the other party (or its representatives). The purchase price for Common Stock sold pursuant to this Section 5.1(c) shall be the “Appraised Price.” The Appraised Price shall be the fair market value it proposes to pay for of such Common Stock, as may be mutually agreed upon by the Hull 2575 Interests, Company and the other material terms of the purchaseManagement Shareholder. The decision to purchase the Hull 2575 Interests, If such parties cannot mutually agree upon the fair market value of the Common Stock to be paid sold within ten (10) days following written notice, the Appraised Price shall be determined as follows: each party shall have the opportunity to appoint, at its own cost, a qualified appraiser within five (5) days following expiration of the ten (10)-day period within which the parties could not mutually agree upon the Appraised Price. The appointment of a qualified appraiser shall be made in writing and delivered to the other party. If either party shall fail to appoint a qualified appraiser within this five (5)-day period, the other qualified appraiser shall unilaterally establish the Appraised Price for the Hull 2575 Interests, and the other terms of the purchase shall be approved Common Stock by the Conflicts Committeea written opinion. If both parties shall appoint a qualified appraiser within this five (5)-day period, such qualified appraisers shall establish the Partnership Group Member and KNOT are unable to Appraised Price in a single written opinion signed by both of them. If such qualified appraisers cannot agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor Common Stock to determine the fair market value be sold within ten (10) days of the Hull 2575 Interests and/or appointment of the other material terms latter of them, such qualified appraisers shall appoint a third qualified appraiser whose sole written opinion shall establish the Appraised Price and shall be binding on which the Partnership Group Member Company and KNOT are unable to agreethe Management Shareholder or his representatives. The cost for such third qualified appraiser, if necessary, shall be borne equally by the Company and the Management Shareholder or his representatives. In determining the fair market value of event the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of Company exercises its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase a terminated Management Shareholder’s Common Stock under Section 5.1(a) above, the Hull 2575 Interests by the Partnership Group will Appraised Price shall be extinguishedpaid to such Management Shareholder in three equal annual installments, plus interest at an annual rate of 7%.
Appears in 1 contract
Sources: Investor Rights Agreement
Procedures. (a) Not later than 30 calendar days In the event that the Company consummates a New Securities Issuance, it shall provide the Investor with written notice of such New Securities Issuance within 5 Business Days after the date consummation thereof (a “Subscription Notice”), describing the amount and type of acceptance New Securities, the identity of the Hull 2575 by Standard Marine, KNOT shall notify purchaser(s) and the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, price and the other material terms upon which the Company issued such New Securities. The Investor shall have twenty (20) Business Days from the date of receipt of the purchase. The decision Subscription Notice to agree in writing to purchase up to the Hull 2575 InterestsAdditional Subscription Shares by executing the definitive purchase documentation on the same price, terms and conditions as those applicable to such New Securities Issuance (in the fair market value to be paid for case of a New Securities Issuance that is not a Qualified Acquisition Issuance), or by payment of cash consideration at the Hull 2575 Interests, and the other terms Volume-Weighted Average Closing Price of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring consecutive Trading Day period before the date of acquisition the announcement of the Hull 2575 Interests by applicable transaction and on other terms to be mutually agreed between the Partnership Group Member; Company and the Investor (in the case of a Qualified Acquisition Issuance), provided that under no circumstances shall this Section 7 entitle the Investor to designate another member of the Board or, for the avoidance of doubt, to enter into any new business relationship with the Company or to have any rights against the Company other than as an investor in the Company, provided, howeverfurther, that that, without limitation to the remaining term Investor’s rights under Section 2, under no circumstances shall the Company be required to register Additional Subscription Shares under the Securities Act or qualify the Additional Subscription Shares under the securities Laws of any other jurisdiction in connection with the issuance thereof. If the Investor fails to so respond in writing within such indemnification twenty (20) Business Day period to purchase its Additional Subscription Shares, then the Investor shall forfeit its Subscription Right hereunder with respect to such New Securities Issuance. Notwithstanding the Hull 2575 foregoing, any consummation by the Investor of the Subscription Right shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title subject to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which satisfaction of all necessary Company shareholder approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X requirements and the related purchase obtainment of all necessary consents, approvals and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the waivers under applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedLaw.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. The Company shall make an Offer by giving to each Eligible Holder at least 30 Business Days' prior written notice of the proposed Additional Sale. Such notice will (ai) Not later than 30 calendar days after identify the class and number of shares or amount of securities proposed to be issued (the "Offered Securities"), the proposed date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, issuance and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, price and the other terms of the purchase issuance and (ii) constitute an offer to issue to each such Eligible Holder its Allocated Amount of the Offered Securities at the same price and on the same other terms (subject to Section 5.2(c)) as are proposed for such Additional Sale, which offer shall be approved remain open for a period of 15 Business Days from the date such notice is given by the Conflicts CommitteeCompany. If Any Offer and any Offered Securities to be made to an Eligible Holder that is a Regulation Y Holder shall provide for such holder to acquire non-voting equivalents of such Offered Securities. Each Eligible Holder desiring to accept such Offer shall give written notice to the Partnership Group Member and KNOT are unable Company prior to agree on the fair market value end of the Hull 2575 Interests and/or 15-Business Day period of such Offer. Such notice (a "Notice of Acceptance") will (A) set forth the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value maximum amount of the Hull 2575 Interests and/or the other material terms on Offered Securities which the Partnership Group Member such Eligible Holder elects to purchase (such Eligible Holder's "Subscribed Amount") and KNOT are unable to agree. In determining the fair market value (B) constitute an acceptance of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT Offer with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value Eligible Holder's Allocated Amount of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determinationOffered Securities. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect Eligible Holder fails to the Hull 2575 give a Notice of Acceptance, such Eligible Holder shall be deemed to be not less than three years have rejected such Offer in full. At the closing of an Additional Sale, each Eligible Holder who shall have timely accepted the related Offer pursuant to this Section 5.2(a) (each, an "Accepting Holder") shall acquire from the closing date Company, and the Company shall issue to such Eligible Holder, its Allocated Amount of the acquisition Offered Securities at the same price and on the same other terms (subject to Section 5.2(c)) as such Additional Sale. The Additional Offeree shall be entitled to acquire at the closing of the Hull 2575 Interests related Additional Sale its Allocated Amount of the Offered Securities. Any Offered Securities not issued at such Additional Sale may not thereafter be sold or otherwise issued by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect Company to title an Additional Offeree until they are again offered to the Hull 2575 Interests and any other such matters as Eligible Holders under the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is procedures specified in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained5.1(a).
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Registration and Participation Agreement (Wesco Distribution Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase up to such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. (a) Not later After the Initial Date of Original Issue, the Fund shall give the Placement Agent and the Insurer written notice, substantially in the form of Exhibit B hereto (a "Notice of Issuance"), of its intention to sell one or more series of Preferred Shares (the "Offered Preferred Shares") no less than 30 calendar thirty days prior to the proposed Marketing Commencement Date (as hereinafter defined). Each Notice of Issuance shall state (i) the proposed Date of Original Issue for such Offered Preferred Shares and (ii) the number of Offered Preferred Shares to be issued, which in any event shall not be less than 1,200 shares nor more than 6,000 shares.
(i) Subject to the satisfaction of the conditions set forth in Section 3(c) hereof, the Placement Agent shall be obligated to use its best efforts to secure subscriptions to purchase Offered Preferred Shares pursuant to Section 1 hereof during the period (the "Marketing Period") commencing on the seventh business day (each a "Marketing Commencement Date") prior to the Date of Original Issue for such Offered Preferred Shares and ending on the second business day prior to such Date of Original Issue. The Fund reserves the right, in its sole discretion, to suspend the solicitation of subscriptions for Offered Preferred Shares during any Marketing Period. Upon the receipt of written notice from the Fund, the Placement Agent will suspend solicitation of subscriptions for Offered Preferred Shares during such Marketing Period until such time as the Fund has advised the Placement Agent that such solicitation may be resumed.
(ii) If (A) the Fund suspends the solicitation of subscriptions for Offered Preferred Shares during any Marketing Period and then advises the Placement Agent that it may resume soliciting subscriptions for such Offered Preferred Shares or (B) the Placement Agent is not obligated to solicit subscriptions to buy Offered Preferred Shares pursuant to Section 1 hereof during any Marketing Period or to purchase Offered Preferred Shares pursuant to Section 5(a) hereof on the proposed Date of Original Issue therefor as a result of the occurrence of an event described in Section 7(o) hereof, (1) any further obligation of the Placement Agent to solicit subscriptions for such Offered Preferred Shares shall be subject to the satisfaction of the conditions set forth in Section 3(c) hereof on the date the Fund requests the Placement Agent to resume soliciting such subscriptions or on the date of the cessation of the event described in Section 7(o) hereof, as the case may be, (2) the Date of Original Issue for such Offered Preferred Shares shall be postponed to a date agreed upon by the Fund and the Placement Agent that is at least seven full business days after the date resumption of acceptance solicitation or the cessation of the Hull 2575 by Standard Marineevent described in Section 7(o) hereof, KNOT as the case may be, (3) the Marketing Period for such Offered Preferred Shares shall notify recommence on the Board date described in clause (1) above and offer shall end on the Board second business day prior to such Date of Original Issue and (4) the opportunity to cause Fund shall make any Partnership Group Member to purchase changes that in the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months opinion of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay counsel for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid Fund or counsel for the Hull 2575 Interests, and Placement Agent may be necessary in the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT preliminary Offering Circular with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable Offered Preferred Shares to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of reflect such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madechanges.
(c) If The obligation of the Placement Agent to solicit subscriptions for Offered Preferred Shares during any Marketing Period therefor will be subject to the accuracy on and as of the related Marketing Commencement Date of the representations and warranties of the Fund and Investment Manager contained herein, to the performance by the Fund and the Investment Manager of all of their respective obligations required to be performed hereunder on or prior to such Marketing Commencement Date and to each of the following additional terms and conditions:
(i) No stop order suspending the sale of such Offered Preferred Shares in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened;
(ii) The Fund shall have prepared and delivered to the Placement Agent copies of a Partnership preliminary Offering Circular with respect to such Offered Preferred Shares, consisting of the Initial Offering Circular, amended or supplemented in a manner satisfactory to the Placement Agent to include the following information:
(A) the number of such Offered Preferred Shares being offered, the initial Auction Date for such Offered Preferred Shares and the number of Rate Period Days in the initial Rate Period therefor which in no event shall exceed 28 Rate Period Days without the consent of the Placement Agent;
(B) all information with respect to the Insurer contained in any documents filed by Ambac Financial Group Member chooses with the Securities and Exchange Commission (the "Commission") pursuant to exercise its option Section 13, 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the date of the Initial Offering Circular;
(C) all financial and statistical information with respect to purchase the Hull 2575 Interests Insurer contained in such preliminary Offering Circular under Section 10.2(bthe heading "Capitalization of the Company--Ambac" as of the end of a fiscal year of the Insurer ending less than one year and ninety days before the last day of such Marketing Period and, if the last day of such Marketing Period will be more than 160 days after the end of such fiscal year (155 days, in the case of the fiscal year ending December 31, 2005), all financial and statistical information with respect to the applicable parties shall enter into a purchase and sale agreement for Insurer contained in such preliminary Offering Circular under the purchase and sale heading "Capitalization of the Hull 2575 Interests Company--Ambac and the Money Markets Preferred Shares Policy" presented as of the end of a fiscal quarter of the Insurer ending less than 160 days (or 155 days, in the case of the fiscal year ending December 31, 2005) before the last day of such Marketing Period; and
(D) all information contained in the most recent annual and semi-annual reports filed by the Fund with the Commission pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests 1940 Act since the date of the Initial Offering Circular, and all financial statements (excluding, in each case, any summary or schedule of the assets of the Fund included therewith) provided to the Partnership Group Member and the Partnership Group Member shall be obligated Lenders pursuant to purchase the Hull 2575 Interests from KNOT. The terms Section 6.1.2 of the purchase and sale agreement will include Credit Agreement, including, without limitation, the following:
(i1) if such Marketing Commencement Date is during the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity period commencing on November 30, 2004 to but excluding March 31, 2005, an unaudited consolidated balance sheet of the MLPFund as of September 30, an interest-bearing promissory note or other form 2004 and the related unaudited consolidated statements of consideration)operations, members' equity and cash flows for the quarter ending September 30, 2004 and the period from the Initial Date of Original Issue to September 30, 2004 furnished by the Fund to the Lenders pursuant to Section 6.1.2 of the Credit Agreement;
(ii2) if such Marketing Commencement Date is during the period commencing on March 31, 2005 to but excluding May 31, 2005, (x) an audited consolidated balance sheet of the Fund as of December 31, 2004 and the related audited consolidated statements of operations, members' equity and cash flows for the period from the Initial Date of Original Issue to December 31, 2004 furnished by the Fund to the Lenders pursuant to Section 6.1.2 of the Credit Agreement and (y) the Partnership Group will be entitled information contained in the Fund's annual report for the period from the Initial Date of Original Issue to December 31, 2004 filed by the Fund with the Commission;
(3) if such Marketing Commencement Date is during the period commencing on May 31, 2005 to but excluding August 31, 2005, (x) the audited financial statements and information from the Fund's annual report described in paragraph (2) above and (y) an unaudited consolidated balance sheet of the Fund as of March 31, 2005 and the related unaudited consolidated statements of operations, members' equity and cash flows for the quarter ending March 31, 2005 furnished by the Fund to the benefit Lenders pursuant to Section 6.1.2 of the indemnification Credit Agreement;
(4) if such Marketing Commencement Date is during the period commencing on August 31, 2005 to but excluding November 30, 2005, (x) the audited financial statements described in paragraph (2) above, (y) an unaudited consolidated balance sheet of the Fund as of June 30, 2005 and the related unaudited consolidated statements of operations, members' equity and cash flows for the quarter and the portion of the year ending June 30, 2005 furnished by the Fund to the Lenders pursuant to Section 6.1.2 of the Credit Agreement and (z) the information contained in Article XIII of this Agreement the Fund's semi-annual report for the remaining term of such indemnification with respect to events or conditions associated six months ending June 30, 2005 filed by the Fund with the operation Commission;
(5) if such Marketing Commencement Date is during the period commencing on November 30, 2005 to but excluding March 31, 2006, (x) the audited financial statements described in paragraph (2) above, (y) the information from the Fund's semi- annual report described in paragraph (4) above and (z) an unaudited consolidated balance sheet of the Hull 2575 Fund as of September 30, 2005 and occurring before the date related unaudited consolidated statements of acquisition operations, members' equity and cash flows for the quarter and the portion of the Hull 2575 Interests year ending September 30, 2005 furnished by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect Fund to the Hull 2575 shall be deemed Lenders pursuant to be not less than three years Section 6.1.2 of the Credit Agreement;
(6) if such Marketing Commencement Date is during the period commencing on March 31, 2006 to but excluding May 31, 2006, (x) an audited consolidated balance sheet of the Fund as of December 31, 2005 and the related audited consolidated statements of operations, members' equity and cash flows for the year ending December 31, 2005 furnished by the Fund to the Lenders pursuant to Section 6.1.2 of the Credit Agreement and (y) the information contained in the Fund's annual report for the year ending December 31, 2005 filed by the Fund with the Commission; and
(7) if such Marketing Commencement Date is during the period commencing on May 31, 2006 to but excluding July 1, 2006, (x) the audited financial statements and information from the closing date Fund's annual report described in paragraph (6) above and (y) an unaudited consolidated balance sheet of the acquisition Fund as of March 31, 2006 and the related unaudited consolidated statements of operations, members' equity and cash flows for the quarter ending March 31, 2006 furnished by the Fund to the Lenders pursuant to Section 6.1.2 of the Hull 2575 Interests by the Partnership Group MemberCredit Agreement;
(iii) KNOT will provide customary representations The Placement Agent shall not have discovered and warranties with respect to title disclosed to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant Fund during or prior to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make commencement of such surveys, tests and inspections Marketing Period that such preliminary Offering Circular or any amendment or supplement thereto contains an untrue statement of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above area fact which, in the reasonable opinion of the Partnership GroupPlacement Agent, unsatisfactoryis material or omits to state any fact which, in the reasonable opinion of the Placement Agent, is material and is required to be stated therein or is necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iv) The Placement Agent shall have received a certificate on such Marketing Commencement Date signed by any Vice President, Treasurer or Assistant Treasurer of the Insurer, dated such Marketing Commencement Date, in which such officer consents to the inclusion of the information under the heading "Capitalization of the Company--Ambac" in such preliminary Offering Circular (the "Insurer's Information") and certifies that the Insurer's Information as of such Marketing Commencement Date is true and correct in all material respects and does not include any untrue statement of a material fact; and
(viv) neither KNOT nor If such preliminary Offering Circular contains financial data with respect to the Fund, the Placement Agent shall have received a letter from the certified independent accountants of the Fund, addressed to the Placement Agent, dated the Marketing Commencement Date, in form and substance acceptable to the Placement Agent (A) confirming that they are independent public accountants with respect to the Fund within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder and are in compliance with the applicable Partnership Group Member shall have any obligation requirements relating to sell or buy the Hull 2575 if any qualification of accountants under Rule 2-01 of Regulation S-X of the consents referred Commission and (B) stating, as of the Marketing Commencement Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in Section 10.1(b) above have such preliminary Offering Circular, as of a date not been obtainedmore than five days prior to the Marketing Commencement Date), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(d) If a Partnership Group Member chooses The Placement Agent will set the initial dividend rate on each series of Offered Preferred Shares on the second business day prior to the Date of Original Issue for such series or is deemed to on such other business day as shall be agreed upon by the Placement Agent and the Fund (the "Pricing Date"). If, on the Pricing Date for any series of Offered Preferred Shares, the Placement Agent shall have chosen not to exercise its option solicited Prospective Purchasers to purchase all of the Hull 2575 Interests at shares of such series on the price determined Date of Original Issue for such series, the dividend rate for the initial Rate Period for such series will equal the Maximum Rate for such Rate Period. On the Pricing Date for each series of Offered Preferred Shares, the Fund will prepare and provide copies to the Placement Agent of an Offering Circular, dated such Pricing Date, consisting of the preliminary Offering Circular with respect to such series of Offered Preferred Shares as of such Pricing Date and including the initial dividend rate on such series of Offered Preferred Shares with such additional changes as shall be consented to by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguishedPlacement Agent.
Appears in 1 contract
Sources: Placement Agency Agreement (Special Value Opportunities Fund LLC)
Procedures. Conversion of this Note may be effected by the Holder upon the surrender to the Company at the principal office of the Company or at the office of any agent or agents of the Company, as may be designated by the Company, of the Note to be converted accompanied by a written notice stating that such Holder elects to convert the entire Face Amount of such Note in accordance with the provisions of this Section 2 and specifying the name or names in which such Holder wishes the certificate or certificates for Common Stock to be issued. In case such notice shall specify a name or names other than that of such Holder, such notice shall be accompanied by payment of all transfer Taxes payable upon the issuance of Common Stock in such name or names and an opinion of counsel satisfactory to the Company that the transfer of the Note may be made without registration under the Securities Act or any applicable state securities laws. Other than such Taxes for transfers to other Persons, the Company will pay any and all issue and other Taxes (aother than Taxes based on income) Not later than 30 calendar days that may be payable in respect of any issue or delivery of Common Stock on conversion of the Note pursuant hereto. As promptly as practicable, after the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT surrender of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, Note and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determinationnotice relating thereto and, if applicable, payment of all transfer Taxes for transfers to other Persons (or the Partnership Group Member will have demonstration to the option, but not satisfaction of the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations Company that 2 3 such Taxes have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(bpaid), the applicable parties Company shall enter into a purchase deliver or cause to be delivered certificates representing the number of validly issued, fully paid and sale agreement for nonassessable Common Stock to which the purchase and sale Holder of the Hull 2575 Interests pursuant to which KNOT Note being converted shall be obligated to sell entitled as the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOTConversion Amount. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 Such conversion shall be deemed to be not less than three years from have been made at the closing close of business on the date of the acquisition giving such notice and of such surrender of the Hull 2575 Interests by Note to be converted so that the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title rights of the Holder thereof as to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have amount being converted shall cease except for the right to terminate its obligation to purchase the Hull 2575 under this Article X receive shares of Common Stock in accordance herewith, and the related purchase Person entitled to receive the Common Stock shall be treated for all purposes as having become the record holder of such Common Stock at such time. The Company shall not be required to convert, and sale agreement no surrender of the Note shall be effective for that purpose, while the transfer books of the Company for the Common Stock are closed for any purpose (but not for any period in excess of ten calendar days); but the surrender of the Note for conversion during any period while such books are so closed shall become effective for conversion immediately upon the reopening of such books, as if the results of any searchesconversion had been made on the date such Note was surrendered, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests and at the price determined by Conversion Ratio in effect on the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguisheddate of such surrender.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Exabyte Corp /De/)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (a) Not later than the “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Rights Holder shall have 30 calendar days after the date (or such shorter period as may be agreed to by holders of acceptance at least 80% of the Hull 2575 then outstanding shares of Preferred Stock and Common Stock then held by Standard Marinethe Investors, KNOT shall notify the Board and offer the Board the opportunity voting together as a single class on an as-converted basis) from delivery of such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such 30 day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his, her or its Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his, her or its full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committeerelative Pro Rata Shares of the Purchasing Rights Holders, at any time within 10 days after receiving the Overallotment Notice. If the Partnership Group Member and KNOT are unable consideration for any New Securities is in a form other than cash, each Rights Holder shall be entitled to agree on pay cash equal to the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses consideration to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedRights Holders’ rights hereunder.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 7.2 hereof. Each Rights Holder shall have thirty (30) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 7.2 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such thirty (30) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within ten (10) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Investors' Rights Agreement (First Look Studios Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities (in a single transaction or a series of related transactions), it shall give to each Rights Holder written notice of its intention to issue New Securities (the “Participation Notice”), describing the amount and type of New Securities, the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have fifteen (15) Business Days from the date of receipt of any such Participation Notice (the “Notice Period”) to agree in writing to purchase up to such Rights Holder’s Pro Rata Share of such New Securities for the price and upon the terms and conditions specified in the Participation Notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so respond in writing within the Notice Period, then such Rights Holder shall forfeit the right hereunder to purchase its Pro Rata Share of such New Securities. Upon the expiration of the Notice Period, the purchaser(s) to which the Company proposes to issue New Securities may, within fifteen (15) Business Days after the expiration of the Notice Period, elect to purchase in aggregate all or any portion of the Available New Securities at the same or higher price and upon nonprice terms not more favorable to the purchasers thereof than specified in the Participation Notice (for the purposes of this Section 7.4, the number of “Available New Securities” equals (a) Not later than 30 calendar days after the date total number of acceptance of New Securities that the Hull 2575 by Standard Marine, KNOT shall notify Company intends to issue as described in the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
Participation Notice less (b) If a Partnership Group Member decides to exercise the option number of New Securities that the Rights Holders elect to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to the foregoing). In the event that the purchaser(s) does not elect to purchase in aggregate all of the Available New Securities, immediately after fifteen (15) Business Days of the expiration of the Notice Period, the Company shall promptly notify each Rights Holder that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Shareholder”) of the number of Remaining New Securities (for the purposes of this Section 10.2(a7.4, the number of “Remaining New Securities” equals (x) the total number of New Securities that the Company intends to issue as described in the Participation Notice less (y) the number of New Securities that the Rights Holders and the purchaser(s) elect to purchase pursuant to the foregoing). During the ten (10) day period commencing after the Company has given such notice, written each Fully Exercising Shareholder may, by giving notice to KNOT the Company, elect to purchase or acquire, in addition to the number of such exerciseshares specified above, the fair market value it proposes up to pay for the Hull 2575 Interests, and the other material terms that portion of the purchase. The decision Remaining New Securities which is equal to purchase the Hull 2575 Interestsproportion that the Ordinary Shares issued and held, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests or issuable (directly or indirectly) upon conversion and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisorexercise, as applicable, will have access of Preferred Shares, by such Fully Exercising Shareholder bears to the proposed sale Ordinary Shares issued and purchase values and terms for the offer submitted by the Partnership Group Member and KNOTheld, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker issuable (directly or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests indirectly) upon conversion and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisorexercise, as applicable, will be divided equally between of the Partnership Group Member and KNOT. Upon receipt of such determinationPreferred Shares then held, the Partnership Group Member will have the option, but not the obligation in by all Fully Exercising Shareholders who wish to purchase the Hull 2575 Interests for the fair market value such Remaining New Securities. The closing of any sale pursuant to this Section 7.4 shall occur within one hundred and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
twenty (c120) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale days of the Hull 2575 Interests expiration of the Participation Notice. In the event that the Company has not issued and sold such New Securities within such one hundred and twenty (120) days period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to the Rights Holders pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained7.4.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Shareholders’ Agreement (Allogene Therapeutics, Inc.)
Procedures. In the event that the Company proposes to undertake ---------- an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten (10) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such ten (10) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "Overallotment Notice"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities in a single transaction or a series of related transactions, it shall give to the Preemptive Right Holders a written notice of its intention to issue such New Securities (athe “Participation Notice”), describing the amount and the type of New Securities, the price and the general terms and conditions upon which the Company proposes to issue such New Securities. The Preemptive Right Holders shall have fifteen (15) Not later than 30 calendar days after Business Days from the date of acceptance receipt of any such Participation Notice (the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity “Participation Period”) to cause any Partnership Group Member agree in writing to purchase such Preemptive Right Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant price and upon the terms and conditions specified in the Participation Notice by giving a written notice to the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Preemptive Right Holder’s Pro Rata Share). If any Preemptive Right Holder fails to so agree in writing within such fifteen (15) Business Day period to purchase such Preemptive Right Holder’s full Pro Rata Share of an offering of New Securities, then such Preemptive Right Holder shall forfeit the right hereunder to purchase that part of its Pro Rata Share of such New Securities that it did not so agree to purchase; provided that if any Preemptive Right Holder fails to so agree within such fifteen (15) Business Days’ period solely because the Company fails to comply with the notice provision of this Section 10.1(a).
(b) 4.2, then the Company shall not effect the proposed issuance of any New Securities. If a Partnership Group Member decides any Preemptive Right Holder fails or declines to exercise its Pro Rata Share in full in accordance with this Section 4, the option Company shall give a written notice (the “Second Participation Notice”) within five (5) Business Days following the Participation Period to purchase all other Preemptive Right Holders who have exercised their respective Pro Rata Share in full. Each such Preemptive Right Holder shall have fifteen (15) Business Days from the Hull 2575 Interests, it will provide, within 24 months date of receipt of notice pursuant any such Second Participation Notice (the “Second Participation Period”) to Section 10.2(a), written notice notify the Company in writing of its desires to KNOT purchase more than its Pro Rata Share of such exercise, the fair market value New Securities and state therein the number of the additional New Securities it proposes to pay for purchase (the Hull 2575 Interests“Additional Number”); provided, further, that Alibaba and NS shall have the other material terms right to exercise such overallotment right only if after exercising such overallotment right, the total shareholding percentage of Alibaba and NS in the Company (calculated on a fully-diluted and as-converted basis) does not exceed twenty percent (20%). If, as a result thereof, such oversubscription exceeds the total number of the New Securities available for purchase. The decision to purchase the Hull 2575 Interests, the fair market value to each oversubscribing Preemptive Right Holder will be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved cut back by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT Company with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value its oversubscription to that number of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests New Securities equal to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms lesser of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note Additional Number or other form of consideration);
(ii) the Partnership Group will be entitled product obtained by multiplying (x) the number of the remaining New Securities available for subscription by (y) a fraction, the numerator of which is the number of Common Shares (calculated on an as-converted but not fully-diluted basis) held by such oversubscribing Preemptive Right Holder immediately prior to the benefit issuance of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect New Securities giving rise to the Hull 2575 shall be deemed to be Preemptive Right and the denominator of which is the total number of Common Shares (calculated on an as-converted but not less than three years from the closing date of the acquisition of the Hull 2575 Interests fully-diluted basis) held by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title all oversubscribing Preemptive Right Holders immediately prior to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant issuance of New Securities giving rise to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedPreemptive Right.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. (a) Not later than 30 calendar If the Company proposes to undertake an issuance of New Securities, it shall give written notice to Investor of its intention to issue New Securities (the “ROFO Notice”), describing the type of New Securities and the price and the terms upon which the Company proposes to issue such New Securities. Investor (or its designee) shall have 15 days after the date from receipt of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such ROFO Notice to cause any Partnership Group Member agree to purchase up to Investor’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant price and upon the terms specified in the ROFO Notice by giving written notice to Section 10.1(athe Company and stating in such notice the quantity of New Securities to be purchased (not to exceed Investor’s Pro Rata Share).
(b) If a Partnership Group Member decides Investor (or its designee) fails to exercise the option provide such written notice within such 15 day period or provides written notice that it elects not to purchase all or any portion of the Hull 2575 InterestsNew Securities, it will providethen the Company shall have 90 days from the expiration of the periods set forth above to sell all or any New Securities that were not agreed to be purchased by Investor, within 24 months of receipt of notice pursuant at a price not less than, and upon terms not materially more favorable to Section 10.2(a), written notice to KNOT the purchasers of such exerciseNew Securities than, specified in the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts CommitteeROFO Notice. If the Partnership Group Member Company has not issued and KNOT are unable to agree on sold such New Securities within such period, then after such period the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT Company shall engage a mutually-agreed-upon investment banking firm, ship broker not issue or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT sell any New Securities without again first complying with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madethis Section 3.
(c) If a Partnership Group Member chooses to exercise Investor (or its option designee) provides written notice within such 15 day period that it elects to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale any or all of the Hull 2575 Interests pursuant New Securities, then the Company and Investor (or its designee) shall promptly thereafter proceed to which KNOT consummate the sale or issuance of New Securities by the Company to Investor (or its designee) on the terms set forth in the ROFO Notice. The Company and its board of directors shall also take all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s charter, bylaws or similar charter documents or the laws of its state of incorporation that is or could become applicable to the Company as a result of the Company and Investor (or its designee) consummating any such sale or issuance of New Securities by the Company to Investor (or its designee). Any such sale or issuance to Investor (or its designee) shall be obligated subject to sell the Hull 2575 Interests to the Partnership Group Member compliance with applicable federal and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedstate securities laws.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Voting Agreement (SWK Holdings Corp)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
6.1 hereof based upon the manner or method of notice, to agree in writing to (bi) If a Partnership Group Member decides to exercise purchase such Rights Holder’s Pro Rata Share of such New Securities for the option to purchase price and upon the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value New Securities to be paid for the Hull 2575 Interests, purchased (not to exceed such Rights Holder’s Pro Rata Share) and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) if electing to purchase such Pro Rata Shares of New Securities, such Rights Holder’s intention to purchase any shares pursuant to any rights to overallotment (as described below). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the Partnership Group will be entitled right hereunder to purchase that part of his Pro Rata Share of such New Securities (and shall forfeit any right to overallotment) that he, she or it did not so agree to purchase. Each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) shall also have a right of overallotment such that such Purchasing Holder may purchase a portion of any Nonpurchasing Holder’s unpurchased Pro Rata Share of such offering of New Securities on a pro rata basis according to the benefit relative Pro Rata Shares of the indemnification contained in Article XIII of this Agreement for Purchasing Rights Holders. If a Purchasing Holder elects to exercise his overallotment rights, he shall so agree within the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before same 20-day period from the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance Notice is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedeffective.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities , it shall first give to each Rights Holder written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities proposed to be issued and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance deemed delivery under Section 6.1 of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase up to such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that such Holder did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase such Rights Holder’s full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder’s full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering of New Securities on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or the other material termsPurchasing Holders, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value at any time within five (5) days after deemed delivery under Section 6.1 of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Elevance Renewable Sciences, Inc.)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten (10) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such ten (10) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "Purchasing Holder") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt Nonpurchasing Rights Holder's full Pro Rata Share of such determination, offering of New Securities (the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b"Overallotment Notice"), the applicable parties . Each Purchasing Holder shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation purchase such Rights Holder's Pro Rata Share (according to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results relative Pro Rata Shares of any searches, surveys, tests or inspections conducted pursuant to paragraph (iiiall Purchasing Holders) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering at any time within five (vi5) neither KNOT nor days after receiving the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedOverallotment Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. (a) Not later than 30 calendar In the event that the Corporation proposes to ---------- issue New Securities, it shall give each Investor written notice (the "First Notice") of its intention, describing the type of New Securities, the price, and the general terms upon which the Corporation proposes to issue the same. Within seven (7) days after the date of acceptance receipt of the Hull 2575 by Standard MarineFirst Notice, KNOT the Investors shall give the Corporation written notice (the "Investor Notice") of its intention to purchase or obtain, at the price and on the terms specified in the Notice, a number of shares equal to or less than its Pro Rata Share of the New Securities. The Investor Notice shall be deemed a binding offer to purchase the number of New Securities set forth therein. In addition, the Investor Notice shall state whether the Investor wishes to purchase more than its Pro Rata Share of the New Securities. The Corporation shall promptly give written notice to each Investor that purchases its Pro Rata Share of the New Securities (a "Fully-Exercising Investor") of the amount of New Securities, if any, that other Investors do not elect to purchase in response to the First Notice (the "Second Notice"). Each Fully Exercising Investor shall notify the Board and offer Corporation within three (3) days of receipt of the Board the opportunity to cause any Partnership Group Member Second Notice if it would like to purchase any of the Hull 2575 Interests for fair market value pursuant unsubscribed shares and indicate the maximum number of unsubscribed shares it would like to Section 10.1(a)purchase. The Corporation shall inform the Fully-Exercising Investor of the total number of unsubscribed shares available and provide the Fully-Exercising Investor with an allocation of the unsubscribed shares based on the number of shares of Common Stock (assuming conversion of all Preferred Stock into Common Stock) held by each Fully Exercising Investor.
(b) If a Partnership Group Member decides To the extent that the Investors fail to exercise in full the option right of first offer as provided in this Section 9 hereof, the Corporation shall have ninety (90) days thereafter to purchase sell (or enter into an agreement pursuant to which the Hull 2575 Interestssale of New Securities covered thereby shall be closed, it will provideif at all, within 24 months ninety (90) days after execution of receipt such agreement) the New Securities to which the Investors' rights were not exercised, at a price and upon general terms no more favorable to the purchasers thereof than specified in the First Notice. In the event the Corporation has not sold the New Securities within said ninety (90)-day period (or sold and issued New Securities in accordance with the foregoing within ninety (90) days from the date of notice pursuant to Section 10.2(asaid agreement), written notice to KNOT of the Corporation shall not thereafter issue or sell any New Securities, without first offering such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access securities to the proposed sale and purchase values and terms for Investors in the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been mademanner provided above.
(c) If a Partnership Group Member chooses An Investor's failure to exercise its option this right of first offer on any issuance of New Securities shall not adversely affect the Investor's right of first offer to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale subsequent issuances of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedNew Securities.
(d) If a Partnership Group Member chooses or The right of first offer granted under this Section 9 is deemed nonassignable except to have chosen not to exercise its option to purchase an Affiliate of the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguishedInvestor.
Appears in 1 contract
Sources: Shareholder Agreements (Greenwich Technology Partners Inc)
Procedures. (a) Not later than 30 calendar In the event that a Crestwood Holdings Entity becomes aware of an opportunity to make an acquisition that includes Subject Assets, then the applicable Crestwood Holdings Entity may make such acquisition without first offering the opportunity to the MLP as long as it complies with the following procedures:
(i) Within 120 days after the date consummation of acceptance of such an acquisition, the Hull 2575 by Standard Marine, KNOT applicable Crestwood Holdings Entity shall notify the Board General Partner in writing of such acquisition. Such notice shall include an offer (the “Offer”) by the applicable Crestwood Holdings Entity to sell the Subject Assets to the MLP, accompanied by a proposed definitive agreement to effectuate the purchase and offer sale of the Board Subject Assets (the opportunity “Purchase Agreement”). The Purchase Agreement shall set forth the material terms of the Offer, including the proposed purchase price, any liabilities to cause any be assumed by the Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchaseOffer; provided that the representations and warranties regarding the Subject Assets shall be substantially consistent with the terms contained in the definitive purchase agreement pursuant to which the applicable Crestwood Holdings Entity acquired the Subject Assets, subject to such adjustments as the applicable Crestwood Holdings Entity reasonably determines are necessary to reflect the differences in the transaction. The decision In addition, if any Crestwood Holdings Entity desires to utilize the Subject Assets, the Offer may include commercially reasonable terms on which the Partnership Group will provide services to such Crestwood Holdings Entity to enable it to utilize the Subject Assets.
(ii) As soon as practicable after the Offer is made, the applicable Crestwood Holdings Entity will deliver to the MLP all information prepared by or on behalf of or in the possession of any Crestwood Holdings Entity related to the Subject Assets and reasonably requested by the MLP, except for such information determined in good faith by such Crestwood Holdings Entity to be necessary to preserve any applicable privilege (including the attorney-client privilege). As soon as practicable, but in any event within 60 days after receipt of the Offer accompanied by the form of Purchase Agreement, the General Partner shall notify the Crestwood Holdings Entity in writing that either: (x) the General Partner, on behalf of the Partnership Group, has elected (with the concurrence of the Conflicts Committee) not to cause a Partnership Group Member to purchase the Hull 2575 InterestsSubject Assets, in which event the fair market value Crestwood Holdings Entities shall be forever free to be paid for continue to own, operate dispose of or otherwise deal in such Subject Assets, or (y) the Hull 2575 InterestsGeneral Partner, and the other terms on behalf of the purchase shall be approved by Partnership Group, has elected (with the concurrence of the Conflicts Committee. If the ) to cause a Partnership Group Member to purchase the Subject Assets, in which event sub-clauses (iii) and KNOT (iv) shall apply.
(iii) In the event that the applicable Crestwood Holdings Entity and the General Partner (with the concurrence of the Conflicts Committee) within 60 days after receipt by the General Partner of the Offer are unable able to agree on the fair market value of the Hull 2575 Interests and/or Subject Assets that are subject to the Offer accompanied by the form of Purchase Agreement and the other material terms of the Offer including, without limitation, the terms, if any, on which the Partnership Group will provide services to any Crestwood Holdings Entity to enable it to utilize the Subject Assets, a Partnership Group Member shall purchase the Subject Assets for the agreed upon fair market value as soon as commercially practicable after such agreement has been reached (and KNOT shall otherwise on the terms and conditions of the agreed Purchase Agreement) and, if applicable, enter into an agreement with any Crestwood Holdings Entity to provide services in a manner consistent with the Offer (as modified based on the agreement of the Parties and the concurrence of the Conflicts Committee).
(iv) In the event that the applicable Crestwood Holdings Entity and the General Partner (with the concurrence of the Conflicts Committee) are unable to agree within 60 days after receipt by the General Partner of the Offer on the fair market value of the Subject Assets that are subject to the Offer or the other terms of the Offer including, if applicable, the terms on which the Partnership Group will provide services to any Crestwood Holdings Entity to enable it to utilize the Subject Assets, the applicable Crestwood Holdings Entity and the General Partner will engage a mutually-agreed-mutually agreed upon independent investment banking firm, ship broker firm or other independent Person that is an expert advisor in valuing midstream assets like the Subject Assets (such firm or Person, the “Subject Assets Valuation Expert”) to determine the fair market value of the Hull 2575 Interests Subject Assets and/or the other material terms on which the Partnership Group Member General Partner and KNOT the Crestwood Holdings Entity are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor Subject Assets Valuation Expert will determine the fair market value of the Hull 2575 Interests Subject Assets and/or the other terms on which the General Partner and the applicable Crestwood Holdings Entity are unable to agree within 30 days of its engagement and furnish the applicable Crestwood Holdings Entity and the General Partner its determination. The fees of the Subject Assets Valuation Expert will be split equally between Crestwood Holdings and the MLP. Once the Subject Assets Valuation Expert has submitted its determination of the fair market value of the Subject Assets and/or the other terms on which the Partnership Group and the applicable Crestwood Holdings Entity are unable to agree, the General Partner will have the right, but not the obligation, subject to the concurrence of the Conflicts Committee, to cause a Partnership Group Member to purchase the Subject Assets pursuant to the Offer as modified by the determination of the Subject Assets Valuation Expert. The Partnership Group Member will provide written notice of its decision to the Crestwood Holdings Entity within 30 days after the Subject Assets Valuation Expert has submitted its determination. Failure to provide such notice within such 30-day period shall be deemed to constitute a decision not to purchase the Subject Assets. If the General Partner elects to cause a Partnership Group Member to purchase the Subject Assets, then the Partnership Group Member shall purchase the Subject Assets pursuant to the Offer as modified by the determination of the Valuation Expert as soon as commercially practicable after such determination and, if applicable, enter into an agreement with the applicable Crestwood Holdings Entity to provide services in a manner consistent with the Offer, as modified by the determination of the Subject Assets Valuation Expert, if applicable.
(b) In the event that a Crestwood Holdings Entity determines to construct Subject Assets, then the applicable Crestwood Holdings Entity may construct or cause to be constructed such Subject Assets without first offering the opportunity to construct and KNOT own same to the MLP if such Crestwood Holdings Entity complies with the following procedures:
(i) Within 120 days after the completion of construction and the commencement of commercial service of such Subject Assets by a Crestwood Holdings Entity, the applicable Crestwood Holdings Entity shall notify the General Partner in writing of such construction and offer the Partnership Group the opportunity to purchase such Subject Assets in accordance with this Section 2.3(b) (the “Construction Offer”). The Construction Offer shall set forth the Crestwood Holdings Entity’s good faith estimate of (A) the actual Construction Costs for the Subject Assets incurred by the applicable Crestwood Holdings Entity, and (B) the fair market value of such Subject Assets, which fair market value shall constitute the proposed purchase price for the Subject Assets, together with the other proposed terms relating to the purchase of the Subject Assets, and, if any Crestwood Holdings Entity desires to utilize the Subject Assets, the Construction Offer may also include commercially reasonable terms on which the Partnership Group will provide services to such Crestwood Holdings Entity to enable it to utilize the Subject Assets (collectively, the “Other Construction Terms”).
(ii) As soon as practicable, but in any event within 60 days after receipt of such written notification, the General Partner shall notify the applicable Crestwood Holdings Entity in writing that either (x) the General Partner, on behalf of the Partnership Group, has elected (with the concurrence of the Conflicts Committee) not to cause a Partnership Group Member to purchase the Subject Assets, in which event the Crestwood Holdings Entities shall be forever free to continue to own, operate dispose of or otherwise deal in such Subject Assets, or (y) the General Partner, on behalf of the Partnership Group, has elected (with the concurrence of the Conflicts Committee) to cause a Partnership Group Member to purchase the Subject Assets, in which event the following procedures shall apply:
(iii) In the event that the applicable Crestwood Holdings Entity and the General Partner (with the concurrence of the Conflicts Committee) within 60 days after receipt by the General Partner of the Construction Offer are able to agree on the fair market value of the Subject Assets that are subject to the Construction Offer and the Other Construction Terms of the Construction Offer, a Partnership Group Member shall purchase the Subject Assets for the agreed upon fair market value as soon as commercially practicable after such agreement has been reached and, if applicable, enter into an agreement with the Crestwood Holdings Entity to provide services in a manner consistent with the Construction Offer (as modified based on the agreement of the Parties and the concurrence of the Conflicts Committee).
(iv) In the event that the applicable Crestwood Holdings Entity and the General Partner (with the concurrence of the Conflicts Committee) are unable to agree within 60 days after receipt by the General Partner of the Construction Offer on the fair market value of the Subject Assets that are subject to the Construction Offer, the applicable Crestwood Holdings Entity and the General Partner will engage a mutually agreed upon independent investment banking firm or other independent Person that is an expert in valuing midstream assets such as the Subject Assets that are the subject of the Construction Offer (the “Independent Expert”), to determine the fair market value of the Subject Assets. Such Independent Expert will determine the fair market value of the Subject Assets within 30 calendar days of its engagement and furnish the Partnership Group Member applicable Crestwood Holdings Entity and KNOT the General Partner its determination, which determination shall be a final and binding determination of the fair market value. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, Independent Expert will be divided split equally between Crestwood Holdings and the MLP.
(v) If the applicable Crestwood Holdings Entity and the General Partner are unable to agree within 60 days after receipt by the General Partner of the Construction Offer on all of the Other Construction Terms, the applicable Crestwood Holdings Entity and the General Partner will obtain a good faith proposal from a mutually agreed upon third party engaged in the business to which such Other Construction Terms relate in order to determine the Other Construction Terms on which the General Partner and the applicable Crestwood Holdings Entity are unable to agree. Such third party will submit a good faith proposal regarding the Other Construction Terms on which the General Partner and the applicable Crestwood Holdings Entity are unable to agree within 30 days of its engagement to the applicable Crestwood Holdings Entity and the General Partner, which proposal shall be a final and binding determination of the Other Construction Terms. The fees of the third party will be split equally between the Partnership Group Member applicable Crestwood Holdings Entity and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for Group.
(vi) Once the fair market value and on the other terms Other Construction Terms have been finally determined pursuant to sub-clauses (iv) or (v) above, the General Partner will have the right, but not the obligation, subject to the concurrence of the Conflicts Committee, to cause a Partnership Group Member to purchase the Subject Assets pursuant to the Construction Offer as modified by the investment banking firmdetermination of the Independent Expert and/or the third party submitting a proposal, ship broker or other expert advisoras applicable. The Partnership Group Member will provide written notice of its decision to the applicable Crestwood Holdings Entity within 30 days after the later of the date on which the Independent Expert and/or the third party submitting a proposal, as applicable, has submitted its determination. Failure to provide such notice within such 30-day period shall be deemed to constitute a decision not to purchase the Subject Assets. If the General Partner elects to cause a Partnership Group Member to purchase the Subject Assets, then the Partnership Group Member shall purchase the Subject Assets pursuant to the Construction Offer as modified by the agreement of the Parties, the determination of the Independent Expert and/or the third party submitting a proposal, as applicable, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b)such determination and, if applicable, enter into an agreement with the applicable parties shall enter into Crestwood Holdings Entity to provide services in a purchase and sale agreement for manner consistent with the purchase and sale Construction Offer, as modified by the determination of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver third party submitting a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLPproposal, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedapplicable.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Omnibus Agreement (Crestwood Midstream Partners LP)
Procedures. (a) Not later If the Company proposes to undertake an issuance of New Securities (other than 30 calendar the Initial Rights Offering, the transactions contemplated by the Securities Purchase Agreement or any Follow On Rights Offering), it shall give written notice to the Stockholder of its intention to issue New Securities (the “ROFO Notice”), describing the type of New Securities and the price and the terms upon which the Company proposes to issue such New Securities. The Stockholder (or its designee) shall have 15 days after the date from receipt of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such ROFO Notice to cause any Partnership Group Member agree to purchase up to the Hull 2575 Interests Stockholder’s Pro Rata Share of such New Securities for fair market value pursuant the price and upon the terms specified in the ROFO Notice by giving written notice to Section 10.1(athe Company and stating in such notice the quantity of New Securities to be purchased (not to exceed the Stockholder’s Pro Rata Share).
(b) If a Partnership Group Member decides the Stockholder (or its designee) fails to exercise the option provide such written notice within such 15 day period or provides written notice that it elects not to purchase all or any portion of the Hull 2575 InterestsNew Securities, it will providethen the Company shall have 90 days from the expiration of the periods set forth above to sell all or any New Securities that were not agreed to be purchased by the Stockholder, within 24 months of receipt of notice pursuant at a price not less than, and upon terms not materially more favorable to Section 10.2(a), written notice to KNOT the purchasers of such exerciseNew Securities than, specified in the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts CommitteeROFO Notice. If the Partnership Group Member Company has not issued and KNOT are unable to agree on sold such New Securities within such period, then after such period the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT Company shall engage a mutually-agreed-upon investment banking firm, ship broker not issue or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT sell any New Securities without again first complying with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but this Error! Reference source not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madefound.
(c) If a Partnership Group Member chooses to exercise the Stockholder (or its option designee) provides written notice within such 15 day period that it elects to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale any or all of the Hull 2575 Interests pursuant New Securities, then the Company and the Stockholder (or its designee) shall promptly thereafter proceed to which KNOT consummate the sale or issuance of New Securities by the Company to the Stockholder (or its designee) on the terms set forth in the ROFO Notice. The Company and its board of directors shall also take all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under the Rights Agreement or any other rights agreement) or other similar anti-takeover provision under the Company’s charter, bylaws or similar charter documents or the laws of its state of incorporation that is or could become applicable to the Company as a result of the Company and the Stockholder (or its designee) consummating any such sale or issuance of New Securities by the Company to the Stockholder (or its designee). Any such sale or issuance to the Stockholder (or its designee) shall be obligated subject to sell the Hull 2575 Interests to the Partnership Group Member compliance with applicable federal and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedstate securities laws.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. (a) Not later From time to time, but not more frequently than 30 calendar days after once per week, Seller may request Buyer to enter into a proposed Transaction by sending Buyer a notice substantially in the date form of acceptance Exhibit H (“Transaction Request”) not less than four (4) Business Days in advance of the Hull 2575 proposed Purchase Date (the “Notice Date”), (i) describing the Transaction and each proposed Underlying Asset in the Pool to be subject to the Transaction, and any related Mortgaged Property and other security therefor in reasonable detail, (ii) transmitting a complete Underwriting Package for each proposed Underlying Asset, (iii) specifying which (if any) of the representations and warranties of Seller set forth in this Agreement (including those contained in Schedules 1-A and 1-B applicable to the related Underlying Assets) Seller will be unable to make with respect to such Underlying Assets, and (v) providing the valuations from the BPOs Seller has received in connection with such proposed Underlying Assets (items (i)-(iv), collectively, the “Preliminary Information”). Seller shall promptly deliver to Buyer any supplemental materials requested at any time by Standard MarineBuyer, KNOT but only to the extent such supplemental materials are in Seller’s possession or are reasonably obtainable by Seller. Buyer shall notify conduct such review of the Board Preliminary Information and offer each such Underlying Asset as Buyer determines appropriate. Within four (4) Business Days of receipt of the Board the opportunity to cause any Partnership Group Member Underwriting Package, Buyer shall determine whether or not it is willing to purchase the Hull 2575 Interests for fair market value pursuant Assets related to the proposed Underlying Assets, and if so, on what terms and conditions (including the indicative pricing level) and shall communicate such determination to Seller in writing. It is expressly agreed and acknowledged that Buyer is entering into the Transactions on the basis of all such representations and warranties and on the completeness and accuracy of the information contained in the applicable Underwriting Package, and any incompleteness or inaccuracies in the related Underwriting Package will only be acceptable to Buyer if disclosed in writing to Buyer by Seller in advance of the related Purchase Date, and then only if Buyer opts to purchase the related Asset from Seller notwithstanding such incompleteness and inaccuracies. In the event of a Representation Breach, Buyer shall have such remedies as provided in Section 10.1(a)3.05.
(b) If Buyer shall give Seller notice of the date when Buyer has received complete Preliminary Information and supplemental materials. Buyer shall endeavor to communicate in writing to Seller a Partnership Group Member decides to exercise the option preliminary non-binding determination of whether or not it is willing to purchase the Hull 2575 Interestssuch Assets, it will provideand if so, on what terms and conditions, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of four (4) Business Days after such exercise, the fair market value it proposes to pay for the Hull 2575 InterestsNotice Date, and the other material terms if its preliminary determination is favorable, by what date Buyer expects to communicate to Seller a final non-binding indication of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees If Buyer has not communicated in writing, its final non-binding indication to Seller by such date, Buyer shall automatically and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will without further action be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will deemed to have the option, but determined not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeany such Asset.
(c) If Buyer communicates to Seller a Partnership Group Member chooses to exercise its option final non-binding determination that it is willing to purchase such Assets, Seller shall deliver to Buyer an executed preliminary Confirmation for such Transaction, describing the Hull 2575 Interests under Section 10.2(b)related Underlying Assets and the proposed Purchase Date, Market Value, Applicable Percentage, Purchase Price and such other terms and conditions as Buyer may require. If Buyer requires changes to the applicable parties preliminary Confirmation, Seller shall make such changes and re-execute the preliminary Confirmation. If Buyer determines to enter into a purchase the Transaction on the terms described in the preliminary Confirmation, Buyer shall promptly execute and sale agreement for return the same to Seller, which shall thereupon become effective as the Confirmation of the Transaction. Buyer’s approval of the purchase of an Asset on such terms and sale conditions as Buyer may require shall be evidenced only by its execution and delivery of the Hull 2575 Interests pursuant related Confirmation. For the avoidance of doubt, Buyer shall not (i) be bound by any preliminary or final non-binding determination referred to which KNOT shall above, (ii) be obligated deemed to sell have approved the Hull 2575 Interests purchase of an Asset by virtue of the approval or entering into by Buyer of a rate lock agreement, total return swap or any other agreement with respect to the Partnership Group Member and the Partnership Group Member shall such Asset or any Underlying Asset, or (iii) be obligated to purchase an Asset notwithstanding a Confirmation executed by the Hull 2575 Interests from KNOT. The terms of the purchase Parties unless and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained until all applicable conditions precedent in Article XIII of this Agreement for the remaining term of such indemnification with respect to events 6 have been satisfied or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests waived by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedBuyer.
(d) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction covered thereby, and shall be construed to be cumulative to the extent possible. If terms in a Partnership Group Member chooses Confirmation are inconsistent with terms in this Agreement with respect to a particular Transaction, the Confirmation shall prevail. Whenever the Applicable Percentage or any other term of a Transaction (other than the Pricing Rate, Market Value and outstanding Purchase Price) with respect to an Asset or Underlying Asset is deemed revised or adjusted in accordance with this Agreement, an amended and restated Confirmation reflecting such revision or adjustment and that is otherwise acceptable to the Parties shall be prepared by Seller and executed by the Parties.
(e) The fact that Buyer has conducted or has failed to conduct any partial or complete examination or any other due diligence review of any Underlying Asset or Purchased Asset shall in no way affect any rights Buyer may have chosen under the Repurchase Documents or otherwise with respect to any representations or warranties or other rights or remedies thereunder or otherwise, including the right to determine at any time that such Underlying Asset or Purchased Asset is not an Eligible Asset.
(f) Buyer shall have no obligation to exercise its option enter into any Transaction if (i) any Margin Deficit, Default or Event of Default exists or would exist as a result of such Transaction, (ii) the Repurchase Date for the Purchased Assets subject to purchase such Transaction would be later than the Hull 2575 Facility Termination Date, or (iii) after giving effect to such Transaction, the Aggregate Purchase Price then outstanding would exceed the Maximum Aggregate Purchase Price.
(g) The Grantor Trust Certificate and the Pass-Through Trust Certificate purchased by Buyer hereunder shall, as of any date, (i) represent 100% of the then current Equity Interests in the Grantor Trust and the Pass-Through Trust, respectively, (ii) collectively represent 100% of the indirect Equity Interests in the Titling Trust related Underlying Entity and (iii) for all intents and purposes hereunder, represent the Buyer’s indirect beneficial ownership of 100% of the Underlying Assets. For the sake of clarity, (x) the Purchase Price for the Initial Trust Interests shall be calculated with respect to the Underlying Assets that are then owned by the Underlying Entities as of the Initial Purchase Date, and (y) the Purchase Price for any Additional Trust Interests shall be calculated with respect to additional Underlying Assets that will be acquired by the Underlying Entities from time to time. Similarly, the calculation of Margin Deficit, Market Value, Price Differential, Repurchase Price or any other valuations of all or a portion of the Purchased Assets shall be with respect to the related Underlying Assets, as the context may require.
(h) From time to time, at the price determined by option of Seller in accordance with this Agreement, the investment banking firmRepurchase Documents and the related Structural Agreements, ship broker or other expert advisor under Section 10.2(bcertain Participation Interests that support the Grantor Trust Interests may be cancelled, upon foreclosure of the related Eligible Mortgage Loan, and reissued to the Pass-Through Trust as Participation Interests in respect of Eligible REO Property (the “Converted Trust Interests”). In such case, all future rights the value of the Pass-Through Trust Interests shall increase in proportion to purchase such newly issued Participation Interests and the Hull 2575 value of the Grantor Trust Interests by shall decrease in proportion to such cancelled Participation Interests. Provided that the Partnership Group will related Underlying Assets are and continue to be extinguishedEligible Assets, from and after the related Conversion Date, such additional Pass-Through Trust Interests shall automatically be subject to a Transaction with respect to such Underlying Assets.
Appears in 1 contract
Sources: Master Repurchase Agreement (AG Mortgage Investment Trust, Inc.)
Procedures. In order to trigger the Equity Conversion, the Required Holders shall provide a written notice of Equity Conversion (athe “Conversion Voting Notice”) Not to the Trustee and the Company, signed by the Required Holders or their legal representatives (together with DTC or Euroclear participant or custodian confirmation of the Required Holders’ beneficial ownership of the Notes). As promptly as practicable after the receipt by the Company of the Conversion Voting Notice, the Company and the Junior PIK Notes Director (or, if the Junior PIK Notes Director is not serving for any reason, the Required Holders pursuant to a written notice to the Trustee and the Company, signed by the Required Holders or their legal representatives, certifying and providing evidence that the signatories of such notice are Holders who together hold more than 50% in outstanding principal amount of the Notes (excluding any Holders that are Affiliates of the Company)) shall mutually select an independent investment banking firm of national standing (the “Appraiser”) that shall determine the conversion rate per US$1,000 principal amount of Notes (including voting rights) for the Equity Conversion (the “Conversion Rate”) based on the Company’s total equity value as of the date of the Conversion Voting Notice. As promptly as practicable and not later than 30 calendar 10 Business Days after the Conversion Rate has been delivered in writing to the Company by the Appraiser, the Company, or the Trustee at the direction of the Company, shall mail a notice (the “Conversion Notice”) to the Holders, with a copy to the Trustee. The Conversion Notice, which shall govern the terms of the settlement of the Equity Conversion, shall include such disclosures as are required by applicable law and shall state, to the extent applicable: (i) the effective date of the Equity Conversion (the “Conversion Date”), which shall be a date that is at least 10 days but not more than 60 days after the date of acceptance the Conversion Notice, subject to any adjustments that may be required by the Company’s bylaws or applicable law; (ii) the Conversion Rate; (iii) any additional steps or procedures necessary to implement the Equity Conversion, including any such steps or procedures that may be required by the Company’s bylaws or applicable law; and (iv) the name and address of the Hull 2575 Paying Agent and any other agent with responsibilities relating to the Equity Conversion. Unless and until the Trustee shall receive a Conversion Notice, the Trustee may assume without inquiry that no Equity Conversion has occurred. On the Conversion Date, the Company shall issue and shall deliver or shall cause issuance and delivery to each Holder at the office or agency maintained by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests Company for fair market value such purpose pursuant to Section 10.1(a).
(b) If 4.02, a Partnership Group Member decides to exercise certificate or certificates for the option to purchase number of Company Shares issuable upon the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT conversion of such exerciseHolder’s Notes at the Conversion Rate, in accordance with the Company’s bylaws and applicable law. Upon the settlement of the Equity Conversion on the Conversion Date, the fair market value it proposes Trustee shall promptly cancel all outstanding Notes and PIK Interest shall cease to pay for the Hull 2575 Interests, and the other material terms of the purchaseaccrue on such Notes. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase Each conversion shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable deemed to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT been effected with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and Notes on the other terms determined by the investment banking firmConversion Date, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note Person in whose name any certificate or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement certificates for the remaining term of Company Shares are issuable upon such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 conversion shall be deemed to be not less than three years from have become on such date the closing date holder of record of the acquisition Company Shares represented thereby. No fractional Company Shares shall be issued upon conversion of Notes. If any fractional portions of Company Shares would otherwise be issuable upon the Hull 2575 Interests by conversion of any Notes, the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title Company shall deliver a number of Company Shares rounded up to the Hull 2575 Interests and nearest whole number of Company Shares. The Company shall not take any other such matters as action pursuant to this Article XI without complying, if applicable, with any applicable rules of any stock exchange on which the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable Company Shares are listed at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedrelevant time.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. The Company will give the Stockholder written notice (aa “Large Issuance Notice”) Not of its intention to issue New Equity Securities in a Large Issuance as soon as practicable, but in no event later than 30 calendar days after the date time authorization for such Large Issuance is granted by the Board. The Large Issuance Notice shall describe the price (or range of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(aprices), written notice to KNOT anticipated amount of such exercisesecurities, the fair market value it proposes to pay for the Hull 2575 Interests, timing and the other material terms of the purchaseLarge Issuance, as well as the number of shares of Class A Common Stock that the Stockholder is entitled to purchase pursuant to the Large Issuance Top Up Right. The decision to purchase Stockholder will have ten (10) Business Days from the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms date of the purchase shall Large Issuance Notice to advise the Company in writing (a “Large Issuance Exercise Notice”) that it intends to exercise its Large Issuance Top Up Right and acquire the applicable number of shares of Class A Common Stock. Subject to Section 2.3 below, a Large Issuance Top Up Right may be approved by the Conflicts Committeeexercised, in whole or in part. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage Stockholder delivers a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT Large Issuance Exercise Notice with respect to a Large Issuance, then closing for the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, Stockholder’s Large Issuance Top Up Right will be divided equally between the Partnership Group Member contingent upon, and KNOT. Upon receipt of such determinationwill take place simultaneously with, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b)after, the applicable parties shall enter into closing of such Large Issuance. Failure by the Stockholder to deliver a purchase and sale agreement for Large Issuance Exercise Notice within ten (10) Business Days from the purchase and sale date of delivery of the Hull 2575 Interests pursuant to which KNOT Large Issuance Notice shall be obligated deemed a waiver of the Stockholder’s Large Issuance Top Up Right with respect to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOTsuch Large Issuance. The terms Stockholder agrees that it will, and will cause each member of the purchase and sale agreement will include the following:
Stockholder Group to, (i) maintain the Partnership Group Member will deliver a cash purchase price (confidentiality of any information included in any Large Issuance Notice delivered by the Company unless the Partnership Group Member otherwise required by law or subpoena and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) after receiving written notice thereof, not effect any acquisition or disposition of any Company Securities until the Partnership Group will be entitled to the benefit public announcement of the indemnification contained Large Issuance referenced in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less Large Issuance Notice (other than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title Class A Common Stock pursuant to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedLarge Issuance Top Up Right).
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Stockholders Agreement (Empire State Realty Trust, Inc.)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "NOTICE"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten (10) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder falls to so agree in writing within such ten (10) day period to purchase such Rights Holder's full Pro Rata Share of an offering, of New Securities (a "NONPURCHASING HOLDER"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "PURCHASING HOLDER") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "OVERALLOTMENT NOTICE"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within five (5) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Investors' Rights Agreement (Chaparral Network Storage Inc)
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe "Notice"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have fifteen (15) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such fifteen (15) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "NONPURCHASING HOLDER"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of its or his Pro Rata Share of such exercise, the fair market value New Securities that it proposes or he did not so agree to pay for the Hull 2575 Interestspurchase, and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase its or his full Pro Rata Share of such offering of New Securities (a "PURCHASING HOLDER") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "OVERALLOTMENT NOTICE"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Holders, at any time within ten (10) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder a written notice of its intention to issue New Securities (athe "NOTICE"), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities given in accordance with Section 6.1 hereof. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance of the Hull 2575 by Standard Marinesuch Notice is effective, KNOT shall notify the Board and offer the Board the opportunity to cause any Partnership Group Member to purchase the Hull 2575 Interests for fair market value as determined pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides 6.1 hereof based upon the manner or method of notice, to exercise the option agree in writing to purchase such Rights Holder's Pro Rata Share of such New Securities for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), price and upon the general terms specified in the Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder's full Pro Rata Share of an offering of New Securities (a "NONPURCHASING HOLDER"), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exerciseNew Securities that he, the fair market value she or it proposes did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a "PURCHASING HOLDER") written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro Rata Share of such offering of New Securities (the Hull 2575 Interests, the fair market value "OVERALLOTMENT NOTICE"). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to be paid for the Hull 2575 Interests, and the other terms purchase a portion of the purchase shall be approved by Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro rata basis according to the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value relative Pro Rata Shares of the Hull 2575 Interests and/or Purchasing Rights Holders, at any time within ten (10) days after receiving the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeOverallotment Notice.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. (a) Not later than 30 calendar days after If the date of acceptance of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity Company decides to cause any Partnership Group Member exercise its option to purchase the Hull 2575 Odyssia Interests for fair market value pursuant the Odyssia Purchase Price, it will provide written notice to Odyssia of such exercise, subject to the conditions contained in this Section 10.1(a)5.2.
(b) If a Partnership Group Member decides to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The Company’s decision to purchase the Hull 2575 Interests, the fair market value to be paid Odyssia Interests for the Hull 2575 Interests, Odyssia Purchase Price and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member the Company chooses to exercise its option to purchase the Hull 2575 Odyssia Interests under Section 10.2(b)5.1(a) for the Odyssia Purchase Price, the applicable parties Company shall enter into a purchase and sale agreement with the holders of the Odyssia Interests and Odyssia for the purchase and sale of the Hull 2575 Odyssia Interests pursuant to which KNOT Odyssia shall be obligated to sell the Hull 2575 Odyssia Interests to the Partnership Group Member Company and the Partnership Group Member Company shall be obligated to purchase the Hull 2575 Odyssia Interests from KNOTOdyssia. The terms of the purchase and sale agreement will include the following:
(i) Details relating to the Partnership Group Member will deliver a cash purchase price (unless $300,000,000 of indebtedness to be assumed and the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity common shares of the MLP, an interest-bearing promissory note Company to be issued to the holders of the Odyssia Interests or other form in accordance with any of consideration)their instructions;
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT Odyssia will provide customary representations and warranties with respect to title to the Hull 2575 Interests Odyssia and its subsidiaries and any other such matters as the Partnership Group Member Company may approve, which approval will not be unreasonably withheld;
(iviii) KNOT Odyssia will grant to the Partnership Group Member Company the right, exercisable at the Partnership Group MemberCompany’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as vessels owned by Odyssia and its subsidiaries that the Partnership Group Member Company may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 Odyssia’s vessels or interfere with the activities of the KNOT Entities or Standard Marine Odyssia thereon and so long as the Partnership Group Member Company has furnished KNOT Odyssia with evidence that adequate liability insurance is in full force and effect;
(viv) the Partnership Group Member Company will have the right to terminate its obligation to purchase the Hull 2575 Odyssia Interests under this Article X V and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iiiiv) above are, in the reasonable opinion of the Partnership GroupCompany, unsatisfactory; and
(viv) neither KNOT nor of the applicable Partnership Group Member Company and Odyssia shall have any obligation to sell or buy the Hull 2575 Odyssia Interests if any of the consents referred to in Section 10.1(b5.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Master Agreement (Poseidon Containers Holdings Corp.)
Procedures. If the Company proposes to undertake an issuance of New Securities (ain a single transaction or a series of related transactions) Not later than 30 calendar in circumstances that entitled a Participation Rights Holder to participate therein in accordance this Section 7(f), the Company shall give to each Participation Rights Holder written notice of its intention to issue New Securities (the "Participation Notice"), describing the amount and the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Participation Rights Holder shall have fifteen (15) business days after from the date of acceptance receipt of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Participation Notice to cause any Partnership Group Member agree in writing to purchase up to the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise the option maximum number of such New Securities that such Participation Rights Holder is entitled to purchase for the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to purchase price specified in Section 10.2(a), 7(f)(v) above and upon the terms and conditions specified in the Participation Notice by giving written notice to KNOT the Company and stating therein the quantity of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value New Securities to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committeepurchased (not to exceed such maximum). If any Participation Rights Holder fails to so agree in writing within such 15 business day period, then such Participation Rights Holder shall forfeit the Partnership Group Member and KNOT are unable right hereunder to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by participate in such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group MemberNew Securities; provided, however, that until the remaining term expiration of the Initial Rights Period, any Participation Rights Holders that have elected to exercise their Right of Participation shall be entitled to exercise such indemnification right with respect to any New Securities where such right has been forfeited by such other Participation Rights Holder(s), and the Hull 2575 Company shall follow repeat the procedures set forth in this Section 7(f) to ascertain whether the electing Participation Rights Holders desire to purchase such other New Securities. All sales hereunder shall be deemed to be not less than three years from consummated concurrently with the closing date of the acquisition transaction triggering the Right of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedParticipation.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Sources: Stock and Warrant Purchase and Investor Rights Agreement (Intel Corp)
Procedures. If the Company proposes to undertake an issuance of New Securities, it shall give written notice to each Rights Holder of its intention to issue New Securities (a) Not later than 30 calendar the “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have ten days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value New Securities to be paid for purchased (not to exceed such Rights Holder’s Pro Rata Share). Notwithstanding the Hull 2575 Intereststerms set forth in the Notice, and the other terms of the purchase each Rights Holder shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation pay cash for New Securities offered in the Notice. If any Rights Holder fails to so agree in writing within such ten day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the Hull 2575 under this Article X right hereunder to purchase that part of its Pro Rata Share of such New Securities that it did not so agree to purchase and the related Company shall promptly give each Rights Holder (if any) who has timely agreed to purchase and sale agreement if its full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the results failure of any searches, surveys, tests or inspections conducted pursuant Nonpurchasing Holder to paragraph purchase such Nonpurchasing Rights Holder’s full Pro Rata Share of such offering of New Securities (iii) above are, in the reasonable opinion “Overallotment Notice”). Each Purchasing Holder shall have a right of overallotment such that such Purchasing Holder may agree to purchase a portion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor Nonpurchasing Holder’s unpurchased Pro Rata Share of such offering on a pro rata basis according to the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any relative Pro Rata Shares of the consents referred to in Section 10.1(b) above have not been obtainedPurchasing Rights Holders at any time within five days after receiving the Overallotment Notice.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
Appears in 1 contract
Procedures. In the event that the Company proposes to undertake an issuance of New Securities, it shall give to each Rights Holder written notice of its intention to issue New Securities (athe “Notice”), describing the type of New Securities and the price and the general terms upon which the Company proposes to issue such New Securities. Each Rights Holder shall have twenty (20) Not later than 30 calendar days after from the date of acceptance mailing of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity any such Notice to cause any Partnership Group Member agree in writing to purchase such Rights Holder’s Pro Rata Share of such New Securities for the Hull 2575 Interests for fair market value pursuant to Section 10.1(a).
(b) If a Partnership Group Member decides to exercise price and upon the option to purchase general terms specified in the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), Notice by giving written notice to KNOT the Company and stating therein the quantity of New Securities to be purchased (not to exceed such Rights Holder’s Pro Rata Share). If any Rights Holder fails to so agree in writing within such twenty (20) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right hereunder to purchase that part of his Pro Rata Share of such exercise, the fair market value it proposes New Securities that he did not so agree to pay for the Hull 2575 Interests, purchase and the other material terms Company shall promptly give each Rights Holder who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written notice of the purchase. The decision failure of any Nonpurchasing Holder to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt Nonpurchasing Rights Holder’s full Pro Rata Share of such determination, offering of New Securities (the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been made.
(c) If a Partnership Group Member chooses to exercise its option to purchase the Hull 2575 Interests under Section 10.2(b“Overallotment Notice”), the applicable parties shall enter into a purchase and sale agreement for the purchase and sale of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell the Hull 2575 Interests to the Partnership Group Member and the Partnership Group Member shall be obligated to purchase the Hull 2575 Interests from KNOT. The terms of the purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLP, an interest-bearing promissory note or other form of consideration);
(ii) the Partnership Group will be entitled to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; provided, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations and warranties with respect to title to the Hull 2575 Interests and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member Each Purchasing Holder shall have any obligation to sell or buy the Hull 2575 if any a right of the consents referred to in Section 10.1(b) above have not been obtained.
(d) If a Partnership Group Member chooses or is deemed to have chosen not to exercise its option to purchase the Hull 2575 Interests at the price determined by the investment banking firm, ship broker or other expert advisor under Section 10.2(b), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.overallotment such that
Appears in 1 contract
Sources: Investors’ Rights Agreement (Leadis Technology Inc)
Procedures. (a) Not later than 30 calendar days after the date of acceptance The Company shall inform each Purchaser in writing within five (5) Business Days of the Hull 2575 by Standard Marine, KNOT shall notify the Board and offer the Board the opportunity to cause occurrence of any Partnership Group Member to purchase the Hull 2575 Interests for fair market value pursuant to Section 10.1(a)Company Equity Financing.
(b) If Any applicable Purchaser shall inform the Company in writing within five (5) Business Days of the occurrence of any Liquidity Event. In the event that a Partnership Group Member decides Purchaser fails to inform the Company of a Liquidity Event within such timeframe, such Purchaser shall surrender its right to exercise the option to purchase the Hull 2575 Interests, it will provide, within 24 months of receipt of notice pursuant to Section 10.2(a), written notice to KNOT of such exercise, the fair market value it proposes to pay for the Hull 2575 Interests, and the other material terms of the purchase. The decision to purchase the Hull 2575 Interests, the fair market value to be paid for the Hull 2575 Interests, and the other terms of the purchase shall be approved by the Conflicts Committee. If the Partnership Group Member and KNOT are unable to agree on the fair market value of the Hull 2575 Interests and/or the other material terms, the Partnership Group Member and KNOT shall engage a mutually-agreed-upon investment banking firm, ship broker or other expert advisor to determine the fair market value of the Hull 2575 Interests and/or the other material terms on which the Partnership Group Member and KNOT are unable to agree. In determining the fair market value of the Hull 2575 Interests and/or the other material terms on which the Hull 2575 Interests are to be sold, the investment banking firm, ship broker or other expert advisor, as applicable, will have access to the proposed sale and purchase values and terms for the offer submitted by the Partnership Group Member and KNOT, respectively, and to all information prepared by or on behalf of the Partnership Group Member and KNOT Liquidity Event Put Right with respect to the Hull 2575 Interests and reasonably requested by such investment banking firm, ship broker or other expert advisor. Such investment banking firm, ship broker or other expert advisor will determine the fair market value of the Hull 2575 Interests and/or the other terms on which the Partnership Group Member and KNOT are unable to agree within 30 calendar days of its engagement and furnish the Partnership Group Member and KNOT its determination. The fees and expenses of the investment banking firm, ship broker or other expert advisor, as applicable, will be divided equally between the Partnership Group Member and KNOT. Upon receipt of such determination, the Partnership Group Member will have the option, but not the obligation in to purchase the Hull 2575 Interests for the fair market value and on the other terms determined by the investment banking firm, ship broker or other expert advisor, as soon as commercially practicable after determinations have been madeLiquidity Event.
(c) If a Partnership Group Member chooses Purchaser desires to exercise its option sell any of the Purchased Shares pursuant to purchase the Hull 2575 Interests under Section 10.2(b)5.1 or 5.2, the applicable parties Purchaser shall enter into a purchase and sale agreement for the purchase and sale within thirty (30) days of the Hull 2575 Interests pursuant to which KNOT shall be obligated to sell occurrence of the Hull 2575 Interests relevant Put Event deliver to the Partnership Group Member Company (A) a written notice (the “Put Exercise Notice”) exercising such applicable Put Right and specifying the Partnership Group Member shall number of Purchased Shares to be obligated to purchase sold (the Hull 2575 Interests from KNOT. The terms “Put Shares”) by such Purchaser and (B) a certificate signed by a duly authorized officer of the purchase and sale agreement will include the following:
Agent, on behalf of such Purchaser, stating that (i) a Liquidity Event or Co-Sale Event, as the Partnership Group Member will deliver a cash purchase price (unless the Partnership Group Member and KNOT agree that the consideration will be paid by means of equity of the MLPcase may be, an interest-bearing promissory note or other form of consideration);
has occurred with respect to such Purchaser, (ii) the Partnership Group will be entitled such Purchaser has full right, title and interest in and to the benefit of the indemnification contained in Article XIII of this Agreement for the remaining term of such indemnification with respect to events or conditions associated with the operation of the Hull 2575 and occurring before the date of acquisition of the Hull 2575 Interests by the Partnership Group Member; providedPut Shares, however, that the remaining term of any such indemnification with respect to the Hull 2575 shall be deemed to be not less than three years from the closing date of the acquisition of the Hull 2575 Interests by the Partnership Group Member;
(iii) KNOT will provide customary representations such Purchaser has all the necessary power and warranties with respect authority and has taken all necessary action to title to the Hull 2575 Interests sell such Put Shares as contemplated by this ARTICLE V and any other such matters as the Partnership Group Member may approve, which approval will not be unreasonably withheld;
(iv) KNOT will grant such Put Shares are free and clear of any and all Liens. Any applicable Purchaser may deliver multiple Put Exercise Notices to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense, to make such surveys, tests and inspections of the Hull 2575 as the Partnership Group Member may deem desirable, Company so long as such surveys, tests or inspections do not damage the Hull 2575 or interfere Purchaser continues to hold any Purchased Shares; provided that a Purchaser shall only be permitted to deliver a Put Exercise Notice with the activities of the KNOT Entities or Standard Marine thereon and so long as the Partnership Group Member has furnished KNOT with evidence that adequate liability insurance is in full force and effect;
(v) the Partnership Group Member will have the right respect to terminate its obligation to purchase the Hull 2575 under this Article X and the related purchase and sale agreement if the results any Purchased Shares once per occurrence of any searches, surveys, tests or inspections conducted pursuant to paragraph (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory; and
(vi) neither KNOT nor the applicable Partnership Group Member shall have any obligation to sell or buy the Hull 2575 if any of the consents referred to in Section 10.1(b) above have not been obtainedPut Event.
(d) If a Partnership Group Member chooses or is deemed Subject to have chosen not Section 5.4 below, the closing of any sale of Put Shares pursuant to exercise its option to purchase the Hull 2575 Interests at the price determined this ARTICLE V shall take place no later than thirty (30) days following receipt by the investment banking firmCompany of the Put Exercise Notice; provided that until the Put Right Closing occurs, ship broker or other expert advisor under Section 10.2(bany applicable Purchaser shall have the right to cancel and rescind the exercise of its Put Right by providing written notice to the Company. The Company shall give any applicable Purchaser at least three (3) days’ prior written notice of the date of closing of the Put Shares (the “Put Right Closing Date”), all future rights to purchase the Hull 2575 Interests by the Partnership Group will be extinguished.
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