Put Option. (a) If either: (i) the Founder or Merry Circle is in breach of its obligations under Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 of the Second Amended and Restated Shareholders’ Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by the Founder or Merry Circle (where applicable) of written notice of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); or (ii) (y) the Company is in material breach of any provision under Sections 12.4(b) or 12.6 of this Agreement, Clause 6.6.1 of the PHK JV Agreement, Clauses 10.4(b) or 10.6 of the Second Amended and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured by the Company within thirty (30) days after the Company’s receipt of written notice of such material breach issued by Aegis; or (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis shall have the option (the “Aegis Put Option”), but not the obligation, to require (i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an Aegis-Company Option Event (the “Relevant Buyer”), to purchase from Aegis such number of shares in the Company held by Aegis or its Affiliates as Aegis may determine at the price per share equal to the price per share paid by Aegis for the Subscribed Shares under this Agreement (subject to (i) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”) (b) Subject to the terms and conditions of this Section 12.7, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay to Aegis the consideration calculated as mentioned in Section 12.7(a) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed by Aegis. (c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase of the shares in the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis of the following: (i) duly executed instruments of transfer and sold notes (if applicable) in respect of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and (ii) half (½) share of any stamp duty or transfer duty payable on the sale and purchase of the shares in the Company to be sold. (d) To enable Aegis to exercise any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy of the 2010 Financial Statements to Aegis. (e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7. (f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreement, in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering has occurred.
Appears in 2 contracts
Sources: Share Subscription Agreement (Charm Communications Inc.), Share Subscription Agreement (Charm Communications Inc.)
Put Option. (a) If either:
(i) at any time during the Founder or Merry Circle is in breach of its obligations under Sections 12.4 or 12.5 term of this AgreementAgreement there is a material breach by the Company of Sections 5(d) (Prohibited Transfers), 6.2 (Compelled Sale Notice), 8.1 (Agreement to Vote), 8.2 (Board Size; or Clauses 10.4 or 10.5 Meetings), 8.3 (Election of Directors), 8.7 (Observer Rights), 8.8 (Restrictions on Certain Corporate Actions), 8.9 (Restrictions on Certain Board Actions), 9.3 (Article V Put Option), 11 (Access to Information), 12 (Other Covenants of the Second Amended Company), 14 (Amendments and Restated Shareholders’ Agreement Waivers) or in 20 (Further Assurances) under this Agreement, and provided that the Company has not remedied such material breach to the satisfaction of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle New Investors (where applicableas defined below) within thirty (30) days after the date of receipt by the Founder Company of a Section 10 Put Notice (as defined below) (the "NOTICE PERIOD"), then in lieu of any damages and such other remedies as may be available at law, equity, under the Company's Charter or Merry Circle hereunder, the CDP Investor and each of the Additional Series 4-A Investors (where applicabletogether, the "NEW INVESTORS") shall have the right, in addition to any put right contained in the Company's Charter, to require the Company to purchase all, but not less than all, of written notice the Series 4-A Preferred Stock held by such New Investor at a price per share equal to US$2,000 plus an amount which would yield an IRR to each New Investor of ten percent (10%) (the "SECTION 10 PUT AMOUNT") to the date of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); or
(ii) (y) purchase, provided, however, that in calculating the Company is IRR, the first date in material breach of any provision under Sections 12.4(b) or 12.6 of this Agreement, Clause 6.6.1 the measurement of the PHK JV Agreement, Clauses 10.4(b) or 10.6 present value will be the date of the Second Amended First Closing and Restated Shareholders’ Agreement or Clause 4.2 the last date will be the date of payment of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured Section 10 Put Amount. In order to complete a purchase by the Company pursuant to this Section 10, the New Investor shall submit to the Company, copied to each other New Investor, an executed notice within thirty sixty (3060) days after the Company’s receipt of written notice of such material breach, setting forth the particulars of the breach issued and the number of shares of Series 4-A Preferred Stock to be purchased by Aegis; or the Company (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”a "SECTION 10 PUT NOTICE"). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case Each other New Investor may be, shall immediately notify in writing Chaview and Aegis within twenty (20) days of the happening date of such event. Subject Section 10 Put Notice serve notice (a "SECTION 10 ADDITIONAL PUT NOTICE") on the Company requiring the Company to Section 12.7(f) below, Aegis shall have the option (the “Aegis Put Option”)purchase all, but not less than all, of the obligation, to require (i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an AegisSeries 4-Company Option Event (the “Relevant Buyer”), to purchase from Aegis such number of shares in the Company A Preferred Stock held by Aegis or its Affiliates as Aegis may determine such New Investor at the a price per share equal to the price per share paid by Aegis for Section 10 Put Amount. If the Subscribed Shares under this Agreement (subject Company has been unable to (i) any adjustment as a result of any share split or consolidation which may have happened in remedy the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)
(b) Subject material breach to the terms and conditions satisfaction of this Section 12.7, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer New Investors prior to the Relevant Buyer such number expiration of shares in the Notice Period, then the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay each New Investor that serves a Section 10 Put Notice or a Section 10 Additional Put Notice its Section 10 Put Amount, by cash, certified check, wire transfer or any combination thereof, with respect to Aegis the consideration calculated as mentioned in Section 12.7(a) each share of Series 4-A Preferred Stock within fifteen (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed by Aegis.
(c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase of the shares in the Company will be completed within (3015) days after Aegis has given the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis end of the following:
(i) duly executed instruments of transfer and sold notes (if applicable) in respect Notice Period against surrender of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable on the sale and purchase of the shares in the Company to be soldrelated Series 4-A Preferred Stock Certificates.
(d) To enable Aegis to exercise any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy of the 2010 Financial Statements to Aegis.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreement, in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering has occurred.
Appears in 2 contracts
Sources: Stockholders Agreement (Mercantile Equity Partners Iii L P), Stockholders Agreement (Vsource Inc)
Put Option. (a) If either:
(i) the Founder or Merry Circle is in breach of its obligations under Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 of the Second Amended and Restated Shareholders’ Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by the Founder or Merry Circle (where applicable) of written notice of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); or
(ii) (y) the Company is in material breach of any provision under Sections 12.4(b) or 12.6 of this Agreement, Clause 6.6.1 of the PHK JV Agreement, Clauses 10.4(b) or 10.6 of the Second Amended and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured by the Company within thirty (30) days after the Company’s receipt of written notice of such material breach issued by Aegis; or (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis Seller shall have the option option, by giving written notice to Buyer within fifteen (15) days following the “Aegis Put Option”)end of any of Buyer’s fiscal quarters ending February 28, but not the obligation2005, May 31, 2005, August 31, 2005 or November 30, 2005, to require (i) sell to Buyer 25% of the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an Aegis-Company Option Event (the “Relevant Buyer”), to purchase from Aegis such number of shares in the Company TLL Shares then held by Aegis or its Affiliates as Aegis may determine at Seller for the price of $1.05 per share equal share, and upon Seller’s exercise of such option, Buyer shall be obligated to the price per share paid by Aegis for the Subscribed Shares under this Agreement (subject to (i) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)buy such TLL Shares.
(b) Subject Seller shall have the option, by giving written notice to Buyer within fifteen (15) days following the terms and conditions end of this Section 12.7any of Buyer’s fiscal quarters ending February 28, 2006, May 31, 2006, August 31, 2006 or November 30, 2006, to sell to Buyer 25% of the TLL Shares then held by Seller for the price of $1.10 per share, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writingupon Seller’s exercise of such option, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay be obligated to Aegis the consideration calculated as mentioned in Section 12.7(a) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to buy such account as directed by AegisTLL Shares.
(c) In Seller shall have the event option, by giving written notice to Buyer within fifteen (15) days following the end of Aegis exercising the Aegis Put Optionany of Buyer’s fiscal quarters ending February 28, the sale and purchase 2007, May 31, 2007, August 31, 2007 or November 30, 2007, to sell to Buyer 25% of the shares in TLL Shares then held by Seller for the Company will price of $1.15 per share, and upon Seller’s exercise of such option, Buyer shall be completed within (30) days after Aegis has given the Aegis Put Option Notice obligated to the Relevant Buyer and at the office of K&L Gates in Hong Kong or buy such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis of the following:
(i) duly executed instruments of transfer and sold notes (if applicable) in respect of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable on the sale and purchase of the shares in the Company to be soldTLL Shares.
(d) To enable Aegis In the event that Seller holds a number of TLL Shares less than or equal to 100,000 at any time when Seller is entitled to exercise any of its rights put options under this Section 12.74.3, Seller shall (notwithstanding any percentage limitations in paragraphs (a), (b) or (c) of this section) be entitled at such time to sell to Buyer the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy entire remaining portion of such TLL Shares for the 2010 Financial Statements price applicable to Aegissuch time period.
(e) In no event shall Buyer be required to purchase or redeem any TLL Shares under this Section 4.3 if such purchase or redemption would violate, constitute a default under, constitute an impairment of capital under, or cause the event acceleration of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share indebtedness of the Tax Buyer under (other than stamp dutyA) in relation to the transfer certificate of incorporation or bylaws of Buyer, (B) any provision of the Shares pursuant General Corporation Law of the State of Delaware, (C) the Securities Act or any other state or federal securities laws, (D) the rules and regulations of AMEX or any other securities exchange on which Buyer’s shares are traded or (E) any other agreement or commitment to this Section 12.7which Buyer is a party or under which any of its assets are bound.
(f) The Aegis Put OptionNotwithstanding the foregoing, if not exercised prior Seller (i) shall have no right to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option exercise its put options pursuant to this Section 4.3 during any fiscal quarter of Buyer in respect which Seller has disposed of a breach of Clause 6.5 or 6.6 any of the PHK JV Agreement, TLL Shares in the public market for Buyer’s securities and (ii) shall not dispose of any of the TLL Shares in the public market for Buyer’s securities during any fiscal quarter of Buyer in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering Seller has occurredsold any TLL Shares to Buyer pursuant to this Section 4.3.
Appears in 1 contract
Sources: Asset Purchase Agreement (Teletouch Communications Inc)
Put Option. (a) If either:
(i) the Founder 8.1 Without in any way limiting or Merry Circle is in breach of its obligations under Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 of the Second Amended and Restated Shareholders’ Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by the Founder or Merry Circle (where applicable) of written notice of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); or
(ii) (y) the Company is in material breach of affecting any provision under Sections 12.4(b) or 12.6 other provisions of this Agreement, Clause 6.6.1 the Holder acknowledges and agrees that the Holder, for the time being, of the PHK JV Agreement"E" shares shall be entitled at any time to require the Holder, Clauses 10.4(b) or 10.6 together with all the other Holders of the Second Amended "C" shares, (who shall be obliged) to:
8.1.1 purchase an undivided share in all the "E" shares and Restated Shareholders’ Agreement or Clause 4.2 any Allocated Loan pertaining to the "E" shares then held by the Holder of the PHK Shareholders’ Agreement or if "E" shares; and
8.1.2 accept the Company or Media Port is in breach cession and assignment of Clause 6.5 or 6.6 an undivided share of the PHK JV Holder of the "E" Class Share's rights and obligations in terms of the "E" Class Use Agreement.
8.2 If the Holder of the "E" shares intends to exercise its rights in terms hereof, and such material breach is not cured it may do so by the Company within thirty giving 2 (30TWO) days after the Company’s receipt of months' written notice of such material breach issued by Aegis; or (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis shall have the option (the “Aegis Put Option”), but not the obligation, to require (i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an Aegis-Company Option Event (the “Relevant Buyer”), to purchase from Aegis such number of shares in the Company held by Aegis or its Affiliates as Aegis may determine at the price per share equal to the price per share paid by Aegis for the Subscribed Shares under this Agreement (subject Holder to (i) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)such effect.
(b) Subject to the 8.3 The terms and conditions of this Section 12.7the resultant sale will be as follows:
8.3.1 the effective date of the sale shall be the day that the notice given in terms of clause 8.2 expires;
8.3.2 the purchase price of the members undivided share of the "E" shares and any Allocated Loan pertaining to those shares shall be R1 (ONE RAND);
8.3.3 the purchase price of such undivided share of the "E" shares and the Allocated Loan (if any), shall be paid on demand therefore by the seller thereof;
8.3.4 on the effective date as determined in terms of clause 8.3.1, the Holder of the "E" shares shall deliver to the Holder a certificate detailing the shares sold, transfer declarations in respect thereof duly signed by the registered Holder and currently dated, and in a written cession of the event Aegis exercises Allocated Loan (if any) and a written cession and delegation of the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay to Aegis the consideration calculated as mentioned in Section 12.7(a) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed by Aegis"E" Class Use Agreement.
(c) 8.4 In the event of Aegis exercising the Aegis Put OptionHolder not signing all or any of the documents as are necessary to give effect to this put option within 14 (FOURTEEN) days of the effective date referred to in clause 8.3.1 above, the sale and purchase Holder hereby irrevocably appoints any Director of the shares in the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice Company, to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis exclusion of the following:Holder, to do all such things and to sign all such documents as may be necessary to give effect to the aforegoing.
(i) duly executed instruments 8.5 The provisions of transfer and sold notes (if applicable) in respect of this clause shall not preclude the shares in the Company to be sold in favour of the Relevant Buyer parties concerned from reaching a new or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable different written Agreement on the sale and purchase of the shares variations referred to in the Company to be soldthis clause.
(d) To enable Aegis to exercise any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy of the 2010 Financial Statements to Aegis.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreement, in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering has occurred.
Appears in 1 contract
Sources: Timeshare Use Agreement
Put Option. (a) If eitherAt the option of the Holder, on each of August 15, 2013 and August 15, 2018 (each a "Repurchase Date"), each Holder may require the Company to repurchase, and the Company shall repurchase, any and all Debentures submitted for repurchase by the Holders thereof at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to, but not including, the relevant Repurchase Date (the "Repurchase Price"), subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.10(c).
(b) No later than 20 Business Days prior to each Repurchase Date, the Company shall mail a written notice of the repurchase right set forth in Section 3.10(a) hereof by first class mail to the Trustee and to each Holder (and to beneficial owners of Debentures as required by applicable law). The notice shall include a form of Repurchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i1) the Founder or Merry Circle is date by which the Repurchase Notice must be delivered to the Paying Agent in breach of its obligations under Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 of order for a Holder to exercise the Second Amended and Restated Shareholders’ Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by the Founder or Merry Circle (where applicable) of written notice of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); orrepurchase right;
(ii) (y2) the Company is in material breach of any provision under Sections 12.4(b) or 12.6 of this Agreement, Clause 6.6.1 of the PHK JV Agreement, Clauses 10.4(b) or 10.6 of the Second Amended and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured by the Company within thirty Repurchase Date;
(30) days after the Company’s receipt of written notice of such material breach issued by Aegis; or (z3) the 2010 Net Income shall Repurchase Price;
(4) whether the Repurchase Price will be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Eventpaid in cash or, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject if permitted pursuant to Section 12.7(f3.11(c) belowhereof, Aegis shall have the option (the “Aegis Put Option”), but not the obligation, to require (i) the Founderin shares of Common Stock or a combination of cash and shares of Common Stock and, in the case of an Aegis-▇▇▇▇ Option Event a combination, the percentage of each;
(5) if, pursuant to Section 3.11 hereof, the Company elects to pay the Repurchase Price in shares of Common Stock or a combination of cash and shares of Common Stock:
(iia) that the Company, in the case of an Aegis-Company Option Event (the “Relevant Buyer”), to purchase from Aegis such number of shares of Common Stock each Holder will receive equal the portion of the Repurchase Price to be paid in shares of Common Stock divided by the Company held by Aegis or its Affiliates as Aegis may determine at the price per Market Price of one share equal to the price per share paid by Aegis for the Subscribed Shares under this Agreement (subject to (i) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)Common Stock;
(b) Subject the method used by the Company to calculate the Market Price; and
(c) a statement that, because the Market Price will be determined prior to the Repurchase Date, Holders of the Debentures will bear the market risk that the value of the shares of Common Stock to be received may decline between the date such Market Price is determined and the Repurchase Date;
(6) the names and addresses of the Paying Agent and the Conversion Agent;
(7) the Conversion Rate and any adjustments thereto;
(8) that the Debentures as to which a Repurchase Notice has been given may be converted if they are otherwise convertible pursuant to Article 8 of this Indenture only if the Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(9) that the Debentures must be surrendered to the Paying Agent to collect payment;
(10) that the Repurchase Price for any Debenture as to which a Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Repurchase Date and the time of surrender of such Debenture;
(11) the procedures Holders must follow to exercise their rights under Section 3.10(a);
(12) the procedures for withdrawing a Repurchase Notice;
(13) that, unless the Company defaults in making payment of such Repurchase Price, interest and Additional Interest, if any, on Debentures surrendered for repurchase by the Company will cease to accrue on and after the Repurchase Date; and
(14) the CUSIP number(s) of the Debentures. At the Company's request, the Trustee shall give the notice of repurchase right in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least three Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such notice of repurchase right must be given to the Holder in accordance with this Section 3.10(b); provided, further, that the text of the notice of repurchase right shall be prepared by the Company.
(c) A Holder may exercise its right specified in Section 3.10(a) upon delivery of a written notice of repurchase (a "Repurchase Notice"), substantially in the form of Exhibit E hereto, to the Paying Agent at any time during the period beginning at 9:00 a.m., New York City time, on the date that is 20 Business Days immediately preceding the relevant Repurchase Date until 5:00 p.m., New York City time, on the Business Day immediately preceding such Repurchase Date, stating:
(1) the certificate number(s) of the Debenture(s) which the Holder will deliver to be repurchased or the appropriate Depositary procedures if Definitive Debentures have not been issued;
(2) the portion of the principal amount of the Debenture(s) which the Holder will deliver to be repurchased, which portion must be in principal amounts of $1,000 or a multiple of $1,000;
(3) that such Debenture(s) shall be repurchased by the Company as of the Repurchase Date pursuant to the terms and conditions of specified in the Debentures and in this Section 12.7, and Indenture; and
(4) in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company elects, pursuant to Section 3.11 hereof, to pay the Repurchase Price, in whole or in part, in shares of Common Stock but such portion of the Repurchase Price shall ultimately be purchased by paid to such Holder entirely in cash because any of the Relevant Buyer according conditions to payment of the Aegis Put Option NoticeRepurchase Price in shares of Common Stock is not satisfied prior to 5:00 p.m., and New York City time, on the Relevant Buyer shall pay to Aegis Business Day immediately preceding the consideration calculated relevant Repurchase Date, as mentioned set forth in Section 12.7(a3.11(c), whether such Holder elects to (A) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds withdraw such Repurchase Notice as to such account as directed by Aegis.
(c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase some or all of the shares in Debentures to which such Repurchase Notice relates (stating the Company will be completed within (30) days after Aegis has given principal amount and certificate numbers, if any, or the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis appropriate Depositary procedures, if applicable, of the following:
Debentures as to which such withdrawal shall relate), or (iB) duly executed instruments of transfer and sold notes (if applicable) receive cash in respect of the shares entire Repurchase Price for all Debentures (or portions thereof) to which such Repurchase Notice relates. The delivery of such Debenture(s) (either through the surrender of Definitive Debentures or through the delivery of beneficial interests in a Global Debenture in accordance with the Company Applicable Procedures) to be sold in favour the Paying Agent with, or at any time after delivery of, the Repurchase Notice (together with all necessary endorsements) at the offices of the Relevant Buyer or its nominee together with definitive share certificates Paying Agent shall be a condition to the receipt by the Holder of the Repurchase Price therefor; provided, however, that such Repurchase Price shall be so paid pursuant to this Section 3.10 only if the Debenture(s) so delivered to the Paying Agent shall conform in all respects to the description thereof in the names related Repurchase Notice. Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.10 shall be consummated by the delivery of the relevant transferor; and
(iiconsideration to be received by the Holder promptly following the later of the Repurchase Date and the time of delivery of the Debenture(s). If a Holder, in such Holder's Repurchase Notice and in any written notice of withdrawal delivered by such Holder pursuant to the terms of Section 3.13, fails to indicate such Holder's choice with respect to the election set forth in Section 3.10(c)(4), such Holder shall be deemed to have elected to receive cash in respect of the entire Repurchase Price for all Debentures subject to such Repurchase Notice in the circumstances set forth in such Section 3.10(c)(4). The Company shall repurchase from the Holder thereof, pursuant to this Section 3.10, a portion of a Debenture, so long as the principal amount of such portion is $1,000 or a multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Debenture also apply to the repurchase of such portion of such Debenture. Notwithstanding anything contained herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Notice contemplated by this Section 3.10(c) half (½) share shall have the right to withdraw such Repurchase Notice in accordance with Section 3.13. The Paying Agent shall promptly notify the Company of the receipt by it of any stamp duty Repurchase Notice or transfer duty payable written notice of withdrawal thereof. Any repurchase pursuant to this Section 3.07 shall be made pursuant to the provisions of Section 3.01 through 3.06 hereof. Unless the Company defaults in the payment of the Repurchase Price, interest shall cease to accrue on the sale and purchase of Debentures or portions thereof called for repurchase on the shares in the Company to be soldapplicable Repurchase Date.
(d) The Company will comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, including the filing of a Schedule TO if required, and will comply with the requirements of any other federal and state securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Debentures by the Company as a result of exercise by Holders of their rights pursuant to Section 3.10(a). To enable Aegis to exercise the extent that the provisions of any securities laws or regulations conflict with the provisions of its rights under Sections 3.10, 3.11, 3.12 or 3.13 of this Section 12.7Indenture, the Founder Company will as soon as practicable but in any event before 31 March 2011 deliver a copy comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.10, 3.11, 3.12 or 3.13 by virtue of the 2010 Financial Statements to Aegissuch conflict.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreement, in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering has occurred.
Appears in 1 contract
Sources: Indenture (Dynegy Inc /Il/)
Put Option. (a) If either:
(i) the Founder or Merry Circle is in breach of its obligations under Sections 12.4 or 12.5 Upon termination of this Agreement; or Clauses 10.4 or 10.5 Agreement by Bank (and not by Zale) as a result of any of the Second Amended events described in Section 5.4(b)(i), (ii), (iii), (iv), or (vi) and Restated Shareholders’ Agreement or in breach for a period of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by thereafter, Bank will have the Founder or Merry Circle right, but not the obligation (where applicablesubject to clause (d) of above), upon written notice of to Zale during such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); or
(ii) (y) the Company is in material breach of any provision under Sections 12.4(b) or 12.6 of this Agreement, Clause 6.6.1 of the PHK JV Agreement, Clauses 10.4(b) or 10.6 of the Second Amended and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured by the Company within thirty (30) days after the Company’s receipt of written notice of such material breach issued by Aegis; or (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis shall have the option day period (the “Aegis Put Option”), but not the obligation, date on which such notice is delivered by Bank to require (i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an Aegis-Company Option Event (Zale being the “Relevant BuyerPut Determination Date”), to sell to Zale, its successors and assigns, and Zale shall be obligated to purchase from Aegis Bank, all of the then outstanding Card receivables and Accounts, for an aggregate purchase price determined in accordance with Section 5.4(f) below, free and clear of any and all liens, claims, charges and encumbrances. Following such number of shares election, Bank shall as promptly as commercially reasonable, and in any event not later than on hundred eighty (180) days from the Company held by Aegis Put Determination Date, on a Business Day reasonably acceptable to Zale, transfer and assign such Card receivables and Accounts to Zale or its Affiliates designee, free and clear of any and all liens, claims, charges and encumbrances, and, in connection therewith, agrees to execute such agreements, documents, instruments of transfer, and financing statements, all upon such terms and conditions as Aegis are reasonable and customary for such transactions, and take such other action as Zale may determine at reasonably request, to effect or evidence such transfer, and furthermore, during such one hundred eighty (180) day period the price per share equal parties agree to continue to abide by the price per share paid by Aegis for the Subscribed Shares under terms and conditions of this Agreement (subject and Bank agrees to (i) any adjustment as a result continue to provide all of any share split or consolidation which may have happened the services to be provided by Bank hereunder in connection with the meantime and (ii) any adjustment Card Program, pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)
(b) Subject to the terms and conditions of this Section 12.7Agreement. Concurrently with such purchase, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writingas a condition thereto, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer Zale shall pay to Aegis Bank the consideration calculated as mentioned in Section 12.7(a) (full amount of the “Aegis Put Price”) in U.S. Dollars purchase price therefor in immediately available funds funds, in United States dollars, to such account maintained with a bank as directed Bank shall reasonably designate in writing. The parties hereto further agree that, unless otherwise agreed to in writing by Aegis.
(c) In the event of Aegis exercising the Aegis Put Optionboth parties hereto, the sale and purchase closing of any of the shares in transactions contemplated by this Section 5.4(e) shall not occur during the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice period from October 1 through December 31 of any year, but, to the Relevant Buyer and at the office of K&L Gates in Hong Kong or extent it would otherwise have occurred during such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis period, they shall occur instead on January 15 of the following:
(i) duly executed instruments of transfer and sold notes (if applicable) in respect of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable on the sale and purchase of the shares in the Company to be soldimmediately following year.
(d) To enable Aegis to exercise any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy of the 2010 Financial Statements to Aegis.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreement, in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering has occurred.
Appears in 1 contract
Put Option. (a) If either:
Commencing August 1, 1999 (i) the Founder or Merry Circle is in breach "First Put Date"), and continuing for a period of its obligations under Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 of the Second Amended and Restated Shareholders’ Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by thereafter, each holder of the Founder or Merry Circle Note shall have the right (where applicablethe "First Put Right") to request that the Company repurchase all, but not less than all, of the Note outstanding (the "Put Option") at a price equal to one hundred and eighteen & 8/10 percent (118.8%) of the principal amount thereof, plus accrued and unpaid interest thereon (the "Put Price"), by delivering to the Company a written notice specifying (i) the number of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Conversion Shares that are subject to the Put Option Event”); or
which shall be the entire amount of the Note of the Noteholder, (ii) the aggregate Put Price, and (yiii) the Company is in material breach of any provision under Sections 12.4(bdate, not earlier than twenty (20) or 12.6 of this Agreement, Clause 6.6.1 of the PHK JV Agreement, Clauses 10.4(b) or 10.6 of the Second Amended Trading Days and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured by the Company within later than thirty (30) days after the Company’s First Put Date, on which the Put Option shall be exercised (the "First Put Exercise Date").
(b) Commencing October 1, 1999 and continuing for a period of thirty (30) days thereafter, each holder of the Note shall have a second right (the "Second Put Right") to request that the Company repurchase all, but not less than all, of the Note outstanding at a price equal to one hundred and twenty & 8/10 percent (120.8%) of the principal amount thereof plus accrued and unpaid interest thereon (the "Second Put Price" and together with the First Put Right sometimes referred to collectively as the "Put Rights"), by delivering to the Company a written notice specifying (i) the number of Conversion Shares that are subject to the Put Option, (ii) the -------------------------------------------------------------------------------- PUT AND CALL AGREEMENT - Page 1 84734.3 (Vitech America, Inc.) Second Put Price, and (iii) the date, not earlier than twenty (20) days and not later than thirty (30) days on which the Put Option shall be exercised (the "Second Put Exercise Date").
(c) Upon receipt by the Company of a notice exercising the First Put Right and/or Second Put Right, the Company shall, within two (2) days of receipt of written such notice, deliver to each holder of the Note exercising the First Put Right or Second Put Right, as applicable, a notice stating whether the Company agrees to repurchase all, but not less than all, of the outstanding Note subject to the First Put Right or Second Put Right, as applicable. In the event the Company delivers notice of its agreement to effect such material breach issued by Aegis; repurchase (a "Company Acceptance Notice"), the provisions in subsection (d) below shall apply. In the event the Company declines to repurchase the outstanding Note subject to the First Put Right and/or Second Put Right, as applicable, the Note shall remain convertible pursuant to their terms at the option of the holders thereof.
(d) Assuming the Company has delivered a Company Acceptance Notice, on the First Put Exercise Date or the Second Put Exercise Date, as applicable, (zi) the 2010 Net Income Purchaser shall deliver to the Company the Note, properly endorsed, representing the Note subject to the Put Option, and (ii) the Company shall deliver to the Purchasers, in immediately available funds, the applicable Put Price. The purchase price for any Put Right shall be less than Nineteen Million U.S. Dollars paid in four (US$19,000,0004) (equal monthly installments on the last Business Day of each an “Aegis-Company Option Event”). Upon month commencing on the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, first full month following the Founder and Merry Circle, First Put Exercise Date or the CompanySecond Put Exercise Date, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis shall have the option (the “Aegis Put Option”), but not the obligation, to require (i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an Aegis-Company Option Event (the “Relevant Buyer”), to purchase from Aegis such number of shares in the Company held by Aegis or its Affiliates as Aegis may determine with interest on each installment at the price rate of ten percent (10%) per share equal to the price per share paid by Aegis for the Subscribed Shares under this Agreement (subject to (i) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)
(b) Subject to the terms and conditions of this Section 12.7, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay to Aegis the consideration calculated as mentioned in Section 12.7(a) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed by Aegisannum.
(c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase of the shares in the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis of the following:
(i) duly executed instruments of transfer and sold notes (if applicable) in respect of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable on the sale and purchase of the shares in the Company to be sold.
(d) To enable Aegis to exercise any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy of the 2010 Financial Statements to Aegis.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreement, in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering has occurred.
Appears in 1 contract
Put Option. 4.1.1 New Hope shall have the right to sell its Shares in the Company to Agria Group (the “Put Option”) as follows:
(a) If eitherwithin 30 days after 12 months following the Completion Date, New Hope shall have the right to serve a prior written notice to Agria Group to sell up to 30% of the Shares in the Company initially subscribed by it to Agria Group;
(b) within 30 days after 24 months following the Completion Date, New Hope shall have the right to serve a prior written notice to Agria Group to sell up to 60% of the Shares in the Company less any Shares sold under Section 4.1.1
(a) that were initially subscribed by it to Agria Group; and
(c) within 30 days after 36 months following the Completion Date, New Hope shall have the right to serve a prior written notice to Agria Group to sell up to 100% of the Shares in the Company less the Shares sold under Section 4.1.1 (a) and Section 4.1.1 (b) that were initially subscribed by it to Agria Group.
4.1.2 Within 45 days after the occurrence of any or all of the following events, which information shall be promptly communicated to New Hope by Agria Group within 5 days after such occurrence, New Hope shall have the right to serve a written notice to Agria Group to sell all of the Shares in the Company held by it:
(ia) the Founder or Merry Circle is Agria Corporation has undergone a Change in breach of its obligations under Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 of the Second Amended and Restated Shareholders’ Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by the Founder or Merry Circle (where applicable) of written notice of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”)Control; or
(iib) Agria Corporation unilaterally terminates the service agreement (yto be entered into and a copy forthwith after execution to be delivered to New Hope) between ▇▇. ▇▇▇ Tao and Agria Corporation within three years following the Company is in material breach of any provision under Sections 12.4(b) or 12.6 of this Agreement, Clause 6.6.1 of the PHK JV Agreement, Clauses 10.4(b) or 10.6 of the Second Amended and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured by the Company within thirty (30) Completion Date without cause. Within 90 days after the CompanyAgria Group’s receipt of New Hope’s written notice (“Notice Day”) of such material breach issued by Aegis; or its intent to exercise its right to sell its Shares pursuant to Sections 4.1.1 and 4.1.2 (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis shall have the option (the “Aegis Put Option”), but not Agria Group shall pay 50% of the obligation, to require purchase price for the Shares sold by New Hope by exercising the Put Option as provided in Section 4.2 (i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an Aegis-Company Option Event (the “Relevant BuyerRepurchased Shares”); within 180 days after the Notice Day, to Agria Group shall pay the remaining 50% of the purchase from Aegis such number of shares in the Company held by Aegis or its Affiliates as Aegis may determine at the price per share equal to the price per share paid by Aegis for the Subscribed Repurchase Shares under this Agreement (subject to (i) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)
(b) Subject to the terms and conditions of this Section 12.7, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay to Aegis the consideration calculated as mentioned provided in Section 12.7(a) 4.2 (“Remaining Purchase Price”)and consummate the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed by Aegis.
(c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase acquisition of the shares in the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis of the following:
(i) duly executed instruments of transfer and sold notes (if applicable) in respect of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable on the sale and purchase of the shares in the Company to be sold.
(d) To enable Aegis to exercise any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy of the 2010 Financial Statements to Aegis.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV AgreementRepurchased Shares, in which case such Aegis Put Option case, the Remaining Purchase Price shall lapse on 1 July 2010 whether or not carry an annual interest of 8% since the Initial Public Offering has occurred91st day after the Notice Day and until being paid in full.
Appears in 1 contract
Sources: Shareholders Agreement (Agria Corp)
Put Option. If the Company fails to file a Form 10-KSB that conforms ---------- with the requirements of the Commission and the Exchange Act on or prior to 4 pm, eastern time, on April 15, 2004 (asuch failure, a "10-KSB Filing Default"), ---------------------- each Investor shall have the right (the "Put Option") to require the Company to ---------- repurchase all or any of its Securities at a put price equal to the Purchase Price paid by such Investor for such Securities (the "Put Price"). If either:
a 10-KSB --------- Filing Default occurs, the Put Option shall be exercisable from April 16, 2004 until 8 pm, eastern time, on May 14, 2004 (the "Put Period"). In order to ----------- exercise the Put Option, an Investor must deliver written notice (a "Put --- Notice") to the Company specifying the number of Securities (the "Put ------ --- Securities") that it is electing to put to the Company and the wiring ---------- instructions for the payment of the Put Price. If an Investor does not deliver a Put Notice prior to the expiration of the Put Period, such Investor shall be deemed to have waived its Put Option. Upon receipt of a Put Notice from an Investor, the Company shall pay such Investor the applicable Put Price on or prior to the later of (i) the Founder or Merry Circle date that is in breach of its obligations under Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 of the Second Amended and Restated Shareholders’ Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle two (where applicable2) within thirty (30) days Business Days after receipt by the Founder or Merry Circle (where applicable) of written notice of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); or
(ii) (y) the Company is in material breach of any provision under Sections 12.4(b) or 12.6 of this Agreement, Clause 6.6.1 of the PHK JV Agreement, Clauses 10.4(b) or 10.6 of the Second Amended receives such Put Notice and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured by the Company within thirty (30) days after the Company’s receipt of written notice of such material breach issued by Aegis; or (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis shall have the option (the “Aegis Put Option”), but not the obligation, to require (i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the date on which such Investor delivers the Securities to the Company, in the case provided that if such Investor elects to put less than all of an Aegis-Company Option Event (the “Relevant Buyer”)is Securities, to purchase from Aegis such number of shares in the Company held shall promptly issue new Securities with terms identical in all respects to the Put Securities (except such new Securities shall represent the portion of the Securities retained by Aegis or its Affiliates as Aegis may determine such Investor). Any amount of the Put Price that is not paid when due shall bear interest at the price per share equal to the price per share paid by Aegis for the Subscribed Shares under this Agreement lower of fifteen percent (subject to (i15%) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)
(b) Subject to the terms and conditions of this Section 12.7, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay to Aegis the consideration calculated as mentioned in Section 12.7(a) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed maximum rate permitted by Aegisapplicable law.
(c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase of the shares in the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis of the following:
(i) duly executed instruments of transfer and sold notes (if applicable) in respect of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable on the sale and purchase of the shares in the Company to be sold.
(d) To enable Aegis to exercise any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy of the 2010 Financial Statements to Aegis.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreement, in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering has occurred.
Appears in 1 contract
Sources: Securities Purchase Agreement (Raptor Networks Technology Inc)
Put Option. (a) If either:
(i) the Founder or Merry Circle is in breach of its obligations under Clauses 10.4 or 10.5 of this Agreement; Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 of the Second Amended and Restated Shareholders’ Share Subscription Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by the Founder or Merry Circle (where applicable) of written notice of such breach issued by Aegis Aegis; (each an “Aegis-▇▇▇▇ Option Event”); or
(ii) (y) the Company is in material breach of any provision under Sections 12.4(bClause 10.4(b) or Clause 10.6 of this Agreement, Section 12.4(b)or Section 12.6 of this the Share Subscription Agreement, Clause 6.6.1 of the PHK JV Agreement, Clauses 10.4(b) or 10.6 of the Second Amended and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured by the Company within thirty (30) days after the Company’s receipt of written notice of such material breach issued by Aegis; or (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(fClause 10.7(f) below, Aegis shall have the option (the “Aegis Put Option”), but not the obligation, to require (i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an Aegis-Company Option Event (the “Relevant Buyer”), to purchase from Aegis such number of shares in the Company held by Aegis or its Affiliates as Aegis may determine at the price per share equal to the price per share paid by Aegis for the Subscribed Shares under this Agreement (subject to (i) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) of the Share Subscription Agreement) (the “Aegis Put Option Notice”).
(b) Subject to the terms and conditions of this Section 12.7Clause 10.7, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay to Aegis the consideration calculated as mentioned in Section 12.7(aClause 10.7(a) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed by Aegis.
(c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase of the shares in the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis of the following:
(i) duly executed instruments of transfer and sold notes (if applicable) in respect of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable on the sale and purchase of the shares in the Company to be sold.
(d) To enable Aegis to exercise any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy of the 2010 Financial Statements to Aegis.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreement, in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering has occurred.
Appears in 1 contract
Put Option. (a1) If eitherIn the event that:
(A) on or before the Ten Year Anniversary, any Sponsor shall have breached any of its material obligations under the Share Retention and Project Funds Agreement and such breach shall not have been cured within ten (10) days following its occurrence; or
(B) on or before the Ten Year Anniversary, the Company shall have materially amended or altered its Charter Documents (other than to increase its authorized share capital) or the Joint Venture Agreement without the prior written consent of IFC; or
(C) on or before the Ten Year Anniversary, the Company shall not have (i) listed all outstanding shares of the Company and all of IFC's shares in the Company and (ii) registered fifty percent (50%) of all outstanding shares of the Company, with such registration including all of IFC's shares in the Company, or such higher amount as required by law, on the Nepal Stock Exchange or another stock exchange, such as the Bombay Stock Exchange, the Hong Kong Stock Exchange, the Jakarta Stock Exchange, the Singapore Stock Exchange and the Kuala Lumpur Stock Exchange (if such registration is required for listing by the rules applicable to such other stock exchange), reasonably acceptable to IFC; or
(D) on or before the Ten Year Anniversary, a Change of Control specified in Section 3.1(a)(i) shall have occurred and such breach shall not have been cured within ten (10) days following its occurrence, or there shall have occurred a breach of the obligations under Article 2 of the Share Retention and Project Funds Agreement and such breach shall have not have been cured within ten (10) days following its occurrence; or
(E) on or before the Ten Year Anniversary, Panda sells or transfers its direct or indirect beneficial ownership interest in the Company; Harza LP and/or Harza LLC sell or transfer their direct or indirect beneficial ownership interest in the Company; or any or all of the HIPC Shareholders sell or transfer their direct or indirect beneficial ownership interest in the Company (except for any transfer expressly permitted by Section 3.3(d), as to which this Section 3.5(b)(1)(E) shall not apply),
(i) the Founder Company agrees (with respect to clauses (B) and (C) above) that, if and to the extent permitted by law, it shall, at the option of IFC (which option, in the case of clause (B), shall expire two hundred seventy (270) days after IFC has received written notice from the Company or Merry Circle a Sponsor Shareholder that the events specified in such clause which trigger the option have occurred; and in the case of clause (C), shall expire two hundred seventy (270) days after IFC has received written notice from the Company or a Sponsor Shareholder that the events specified in such clause which trigger the option have occurred), purchase some or all (at IFC's option) of IFC's shares in the Company; provided, however, that the failure of the Company or a Sponsor Shareholder to deliver any of the aforesaid notices (or any other notices under this Section 3.5(b)) to IFC shall not preclude IFC from exercising its option to put its shares to the Company upon the occurrence of the event specified in any applicable clause under this Section 3.5(b) which triggers the option, and provided, further, that the Company may purchase such shares of IFC only with funds available to the Company for the distribution of dividends pursuant to the Investment Agreement, and (ii) each of Panda of Nepal, RDC of Nepal, and HIPC agrees (with respect to clauses (D) and (E) above) that it shall, at the option of IFC (which option, in the case of clause (D), shall expire two hundred seventy (270) days after IFC has received written notice from the Company or a Sponsor Shareholder that the events specified in such clause which trigger the option have occurred; and in the case of clause (E), shall expire forty-five (45) days after IFC has received written notice from the Company or a Sponsor Shareholder that the events specified in such clause which trigger the option have occurred), purchase some or all (at IFC's option) of IFC's shares in the Company; provided, however, that in the case of clause (E), Panda of Nepal, RDC of Nepal, or HIPC (as the case may be) shall only be required to purchase such percentage of IFC's shares in the Company as shall equal the following percentage: the percentage of the Company being Transferred beneficially, directly or indirectly, by Panda, Harza LP and Harza LLC, or the HIPC Shareholders (as the case may be) multiplied by the quotient of 100 divided by 90; it being understood that with respect to clause (E), Panda of Nepal shall only be obligated to purchase IFC's shares in the event of a direct or indirect Transfer by Panda, RDC of Nepal shall only be obligated to purchase IFC's shares in the case of a direct or indirect Transfer by Harza LP and/or Harza LLC, and HIPC shall only be obligated to purchase IFC's shares in the case of a direct or indirect Transfer by any of the HIPC Shareholders) (except for any transfer expressly permitted by Section 3.3(d)); and provided further, that in the case of a Transfer by Panda under clause (E), Panda of Nepal shall not be required on account thereof to purchase IFC's shares to the extent the Transfer by Panda involves shares which are not required to keep Panda's beneficial ownership in the Company above fifty-one percent (51%) of the total ownership interest in the Company; and provided further, that in the case of clause (D), each Sponsor Shareholder shall only be required to purchase its Sponsor Share of IFC's shares in the Company, and (iii) with respect to clause (A), Panda of Nepal, RDC of Nepal or HIPC, whichever has breached (or has had a direct or indirect parent Sponsor breach) the material obligation under the Share Retention and Project Funds Agreement, agrees that it shall, at the option of IFC (which option, in the case of said clause (A), shall expire two hundred seventy (270) days after IFC has received written notice from the Company or the breaching Sponsor Shareholder that the events specified in such clause which trigger the option have occurred), purchase such percentage of IFC's shares in the Company as shall equal the following percentage: the percentage of the Company owned by the breaching Sponsor Shareholder multiplied by the quotient of 100 divided by 90. Thus, for example with respect to clause (A), if RDC of Nepal is the breaching Sponsor Shareholder and owns five percent (5%) of the total shares in the Company and IFC owns one hundred (100) shares in the Company, IFC would be entitled to sell on account of the breach by RDC of Nepal under clause (A) the following number of shares in the Company: (5% x 100/90) of 100 shares, which equals 5.56 shares. Furthermore, for example with respect to clause (E), if Panda were to own fifty percent (50%) of the total shares in Panda of Nepal, and Panda of Nepal were to own fifty percent (50%) of the Shares in the Company, and Panda were to Transfer to an entity (the "Panda Transferee") which is not owned by Panda fifty percent (50%) of Panda's shares in Panda of Nepal (thereby resulting in a Transfer by Panda of a twelve and one-half percent (12.5%) indirect beneficial ownership interest in the Company) and IFC owns one hundred (100) shares in the Company, IFC would have the option to sell to Panda of Nepal on account of the Transfer by Panda under clause (E) the following number of shares in the Company: (12.5% x 100/90) of 100 shares, which equals 13.89 shares.
(2) In the event the Company is not legally permitted to purchase, does not have sufficient funds which would otherwise be available for distribution of dividends, or otherwise fails to purchase, IFC's shares in the Company in connection with clause (B) or (C) of Section 3.5(b)(1) within sixty (60) days after IFC has given notice of its obligations under Sections 12.4 exercise of its option to put such shares to the Company, then each Sponsor Shareholder agrees that it shall, at the option of IFC, purchase its Sponsor Share of IFC's shares in the Company.
(3) Any purchase of IFC's shares in the Company by the Company or 12.5 by any Sponsor Shareholder in connection with clause (1)(A), (B), (C), or (D) of this Agreement; or Clauses 10.4 or 10.5 of the Second Amended and Restated Shareholders’ Agreement Section 3.5(b)(1) or in breach connection with Section 3.5(b)(2) shall be at a price per share that will provide a return on equity, taking into account dividends paid and any prior return of capital, for IFC of twelve percent (12%) per annum calculated for the deed of non-competition executed period from the date on which IFC acquired its shares through the date on which IFC's shares are purchased and measured in constant Dollars by adjusting all Dollar amounts by the Founder rate of change during the foregoing calculation period in favor the U.S. Consumer Price Index for all urban consumers.
(4) In the event any Sponsor Shareholder is required to purchase IFC's shares in the Company pursuant to clause (E) of PHK and Posterscope Advertising Limited and Section 3.5(b)(1), the parties shall in good faith promptly attempt to reach mutual agreement on the price to be paid for such breach is not cured by IFC shares (the Founder or Merry Circle (where applicable) "Purchase Price"). If the parties are unable to mutually agree on the Purchase Price within thirty (30) days after receipt by the Founder or Merry Circle (where applicable) of written IFC has given notice of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); or
(ii) (y) its option to put the IFC shares in the Company is to the Sponsor Shareholders (the "Put Notice"), the parties shall in material breach of any provision under Sections 12.4(bgood faith promptly attempt to reach mutual agreement on an appraiser to determine the Purchase Price. If the parties are unable to mutually agree on an appraiser within fifteen (15) or 12.6 of this Agreementdays, Clause 6.6.1 the parties shall request that the Secretary General of the PHK JV Agreement, Clauses 10.4(b) or 10.6 Permanent Court of the Second Amended and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and Arbitration at The Hague appoint such material breach is not cured by the Company appraiser. The appraiser shall be directed to make his valuation within thirty (30) days after his appointment and the Purchase Price shall be the Purchase Price determined by such appraiser. The appraiser appointed pursuant to this clause (4) shall be an independent certified public accountant or investment banker with at least ten (10) years' experience in valuing independent power projects and shall not be a present employee or agent of, or consultant or counsel to, any party to any Principal Document or any affiliate of any such party. The valuation of the Purchase Price shall be in writing. The expenses of the appraiser appointed pursuant to this clause (4) shall be borne by the Company’s receipt of written notice of such material breach issued by Aegis; or (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis shall have the option (the “Aegis Put Option”), but not the obligation, to require .
(i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an Aegis-Company Option Event (the “Relevant Buyer”), IFC shall not exercise its option to purchase from Aegis such number of shares in the Company held by Aegis or put its Affiliates as Aegis may determine at the price per share equal to the price per share paid by Aegis for the Subscribed Shares under this Agreement (subject to (i) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)
(b) Subject to the terms and conditions of this Section 12.7, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according Company or to the Aegis Put Option Notice, Sponsor Shareholders in the case of clause (C) above in the event that IFC has foreclosed upon the Project pursuant to the Investment Agreement and the Relevant Buyer shall pay to Aegis the consideration calculated as mentioned in Section 12.7(a) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed by AegisSecurity Documents.
(c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase of the shares in the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis of the following:
(i) duly executed instruments of transfer and sold notes (if applicable) in respect of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable on IFC hereby agrees that it will, at the sale and purchase written request of the shares in Company but at no cost or expense to IFC, reasonably cooperate with the Company to be sold.
(d) To enable Aegis to exercise any of its rights under this Section 12.7, establish a holding company for the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy purpose of the 2010 Financial Statements to Aegis.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share listing of the Tax (other than stamp duty) in relation Shares; provided, however, that the foregoing shall not require IFC to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreementtake any action which it, in which case such Aegis Put Option shall lapse its good faith judgment, believes (A) may impair its security interest or other Lien on 1 July 2010 whether any Collateral or not the Initial Public Offering has occurred(B) is contrary to applicable law.
Appears in 1 contract
Put Option. (a) If either:
(i) the Founder or Merry Circle is in breach of its obligations under Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 of the Second Amended and Restated Shareholders’ Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by the Founder or Merry Circle (where applicable) of written notice of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); or
(ii) (y) the Company is in material breach of 4.13.1 Notwithstanding any other provision under Sections 12.4(b) or 12.6 of this Agreement, Clause 6.6.1 of during the PHK JV Agreementperiod commencing on April 1, Clauses 10.4(b) or 10.6 of 2009 and ending October 1, 2009 (the Second Amended and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement"Permitted Window"), and such material breach is not cured by the Company within thirty (30) days after the Company’s receipt of written notice of such material breach issued by Aegis; or (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000) (each an “Aegis-Company Option Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis Preferred Holder shall have the option (the “Aegis "Put Option”)") to be exercised by written notice (the "Election Notice") to Avensys, but not the obligation, to require (i) the Founder, in the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, Manaris and the other Preferred Holders during the Permitted Window to either:
4.13.1.1 sell all and not less than all of the Shares owned by such Preferred Holder to Avensys for its proportionate share of $2,000,000 calculated based on such Preferred Holder's respective shareholding interest as set forth in Section 2.4.3 of the Asset Purchase Agreement and in which case Avensys shall be obligated to purchase same at such price, payable within 30 days of receipt of the Election Notice and of the share certificates representing such Preferred Holder's Shares, duly endorsed for transfer; or
4.13.1.2 exchange all and not less than all of the Shares owned by such Preferred Holder into that number of freely tradable common shares of Manaris equal its proportionate share of $1,500,000 divided by the Reference Share Price, as defined in the case Asset Purchase Agreement, calculated based on such Preferred Holder's respective shareholding interest as set forth in Section 2.4.3 of an Aegis-the Asset Purchase Agreement and in which case, Manaris shall deliver such common shares to such Preferred Holder within 30 days of receipt of the Election Notice and of the share certificates representing said Shares, duly endorsed for transfer.
4.13.2 In the event that any Preferred Holder exercises the Put Option in accordance with Section 4.13.1, each of the other Preferred Holders shall send a notice to Avensys, the Company Option Event and Manaris within 15 days of receipt of the Election Notice (the “Relevant Buyer”)"Second Election Notice") confirming that they elect to either :
4.13.2.1 sell all and not less than all of the Shares owned by such Preferred Holder to Avensys in accordance with Section 4.13.1.1, the payment of which shall occur within 30 days of receipt of the Second Election Notice; or
4.13.2.2 exchange all and not less than all of the Shares owned by such Preferred Holder in accordance with Section 4.13.1.2, the deliverance of corresponding common shares of Manaris occurring 30 days of receipt of the Second Election Notice. If a Preferred Holder does not send a Second Election Notice within such 15 day time period, said Preferred Holder will be deemed to purchase from Aegis such number have elected to exchange its Shares in accordance with Section 4.13.2.1.
4.13.3 In the event that none of shares in the Company held by Aegis or its Affiliates as Aegis may determine at Preferred Holders exercises the price per share equal to the price per share paid by Aegis for the Subscribed Shares under this Agreement (subject to (i) any adjustment as a result of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)
(b) Subject in accordance with this Section 4.13, the Shareholders agree to renegotiate in good faith the terms and conditions of this Section 12.7, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay to Aegis the consideration calculated as mentioned in Section 12.7(a) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed by AegisAgreement.
(c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase of the shares in the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis of the following:
(i) duly executed instruments of transfer and sold notes (if applicable) in respect of the shares in the Company to be sold in favour of the Relevant Buyer or its nominee together with definitive share certificates thereof in the names of the relevant transferor; and
(ii) half (½) share of any stamp duty or transfer duty payable on the sale and purchase of the shares in the Company to be sold.
(d) To enable Aegis to exercise any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy of the 2010 Financial Statements to Aegis.
(e) In the event of Aegis exercising the Aegis Put Option, each of Aegis and the Relevant Buyer shall be liable for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares pursuant to this Section 12.7.
(f) The Aegis Put Option, if not exercised prior to the Initial Public Offering, will lapse upon the Initial Public Offering, save for the Aegis Put Option in respect of a breach of Clause 6.5 or 6.6 of the PHK JV Agreement, in which case such Aegis Put Option shall lapse on 1 July 2010 whether or not the Initial Public Offering has occurred.
Appears in 1 contract
Sources: Shareholder Agreement (Manaris Corp)
Put Option. (a) If either:
(i) Subject to the Founder or Merry Circle is conditions set forth in breach of its obligations under Sections 12.4 or 12.5 of this Agreement; or Clauses 10.4 or 10.5 Section 2 and prior to the termination of the Second Amended put rights in accordance with Section 3, below, upon notice (“Put Exercise Notice”) from the Purchaser to the Escrow Agent and Restated Shareholders’ Agreement or in breach of the deed of non-competition executed by the Founder in favor of PHK and Posterscope Advertising Limited and such breach is not cured by the Founder or Merry Circle (where applicable) within thirty (30) days after receipt by the Founder or Merry Circle (where applicable) of written notice of such breach issued by Aegis (each an “Aegis-▇▇▇▇ Option Event”); or
(ii) (y) the Company is in material breach of any provision under Sections 12.4(b) or 12.6 of this Agreement, Clause 6.6.1 of the PHK JV Agreement, Clauses 10.4(b) or 10.6 of the Second Amended and Restated Shareholders’ Agreement or Clause 4.2 of the PHK Shareholders’ Agreement or if the Company or Media Port is in breach of Clause 6.5 or 6.6 of the PHK JV Agreement, and such material breach is not cured by the Company within thirty (30) days after (“Put Trigger Notice”) of the Company’s receipt of Company giving written notice of such material breach issued by Aegis; or the occurrence of any of the events set forth in paragraphs 2(a)(i) to (z) the 2010 Net Income shall be less than Nineteen Million U.S. Dollars (US$19,000,000iii) (each an a “Aegis-Company Option Put Trigger Event”). Upon the happening of an Aegis-Company Option Event or an Aegis-▇▇▇▇ Option Event, the Founder and Merry Circle, or the Company, as the case may be, shall immediately notify in writing Chaview and Aegis of the happening of such event. Subject to Section 12.7(f) below, Aegis Purchaser shall have the option right to require the Company to redeem the number of Shares (the “Aegis Put OptionShares”) and sixteen (16) of the Warrants multiplied by the number of such Shares (the “Put Warrants”) set forth in the Put Exercise Notice for the Issue Price multiplied by the number of Put Shares (the “Put Consideration”), but payable in cash as set forth in Section 2(b). Any remaining Warrants held by the Purchaser shall not be redeemable, cancelable or callable by the obligation, Company. The Purchaser shall have the right to require (i) redemption of the Founder, in Put Shares and Put Warrants pursuant to this Section 2 only upon the case of an Aegis-▇▇▇▇ Option Event or (ii) the Company, in the case of an Aegis-Company Option Event (the “Relevant Buyer”), to purchase from Aegis such number of shares in the Company held by Aegis or its Affiliates as Aegis may determine at the price per share equal to the price per share paid by Aegis for the Subscribed Shares under this Agreement (subject to (i) any adjustment as a result occurrence of any share split or consolidation which may have happened in the meantime and (ii) any adjustment pursuant to Section 9.1(d)) (the “Aegis Put Option Notice”)
(b) Subject to the terms and conditions of this Section 12.7, and in the event Aegis exercises the Aegis Put Option by giving the Relevant Buyer notice in writing, Aegis or its Affiliates shall transfer to the Relevant Buyer such number of shares in the Company to be purchased by the Relevant Buyer according to the Aegis Put Option Notice, and the Relevant Buyer shall pay to Aegis the consideration calculated as mentioned in Section 12.7(a) (the “Aegis Put Price”) in U.S. Dollars in immediately available funds to such account as directed by Aegis.
(c) In the event of Aegis exercising the Aegis Put Option, the sale and purchase of the shares in the Company will be completed within (30) days after Aegis has given the Aegis Put Option Notice to the Relevant Buyer and at the office of K&L Gates in Hong Kong or such other place as the Relevant Buyer and Aegis may agree whereupon the Relevant Buyer will pay the Aegis Put Price against the delivery by Aegis of the followingfollowing events:
(i) duly executed instruments the Company shall have not received the approval of transfer and sold notes (if applicable) in respect its common stockholders of the shares in issuance of Shares of Common Stock issuable upon the Company to be sold in favour Conversion of the Relevant Buyer Shares or its nominee together with definitive share certificates thereof in the names exercise of the relevant transferorWarrants (the “Underlying Shares”) by 5:00 pm New York time on September 30, 2007; andor
(ii) half The American Stock Exchange (½“AMEX”) share shall not have approved the Listing of any stamp duty or transfer duty payable Additional Securities application filed by the Company relating to the Underlying Shares by 5:00 pm New York time on September 30, 2007 (for a reason other than the sale and purchase Purchaser failing to timely provide AMEX with information reasonably requested by AMEX Listing Qualification as part of their review of the shares in application); or
(iii) AMEX or the Company to be solddelists the Company’s Common Stock on or before 5:00 pm New York time on September 30, 2007.
(db) To enable Aegis to exercise The Company shall notify the Lead Investors promptly in writing following the occurrence of any of its rights under this Section 12.7, the Founder will as soon as practicable but in any event before 31 March 2011 deliver a copy Put Trigger Events. The Put Shares and Put Warrants shall be redeemed by the Company within ten (10) days after receipt by the Company of the 2010 Financial Statements Put Exercise Notice from the Purchaser. Payment to Aegis.
(e) In the event Purchaser for the Put Shares and Put Warrants shall first be made out of Aegis exercising the Aegis Lead Investors Escrow Amount attributable to such Purchaser in accordance with the terms of the Lead Investors Escrow Agreement. If the funds in the Lead Investors Escrow Account are insufficient to redeem all of the Put Option, each of Aegis Shares and the Relevant Buyer shall be liable Put Warrants, and the Company does not have sufficient legally available funds for its own share of the Tax (other than stamp duty) in relation to the transfer of the Shares redemption pursuant to this Section 12.7.
2, as reasonably determined by the Board, to redeem all of the Put Shares and the Put Warrants, the Company shall first redeem that number Put Shares for the Put Consideration determined by the Board to be legally permissible and the Company shall issue a promissory note (fa “Promissory Note”) in favor of the Purchaser delivering a Put Option Notice in a principal amount equal to (i) the funds required to redeem the Put Shares and Put Warrants in full less (ii) the Put Consideration actually paid to such Purchaser. The Aegis Promissory Note shall bear interest at a rate of 2% per month for a period of six (6) months from the date of issuance and shall increase to 3% per month for each month thereafter. The Promissory Note shall contain such other terms as agreed to between the Purchaser and the Company. Once the Company has paid the entire unpaid principal amount and any accrued and unpaid interest on the Promissory Note, the Purchaser shall deliver any remaining Put Option, if Shares or Put Warrants not exercised prior previously delivered to the Initial Public OfferingCompany for redemption in full. During the period beginning on the date the Company receives a Put Exercise Notice and until all Put Shares and Put Warrants set forth in such Notice have been redeemed, will lapse upon the Initial Public OfferingCompany shall not, save for without the Aegis Put Option written consent of each Lead Investor, (i) make any capital expenditures in respect of a breach of Clause 6.5 or 6.6 excess of the PHK JV Agreementamount approved by the Board in the Company’s annual budget, (ii) acquire any entity or any assets of any business in which case such Aegis Put Option shall lapse on 1 July 2010 whether any transaction or not series of related transactions if the Initial Public Offering has occurredaggregate acquisition price is greater than $1,000,000, or (iii) make any distributions to its equity holders.
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Sources: Put Option Agreement (Callisto Pharmaceuticals Inc)