Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 7 contracts
Sources: Shareholders Agreement (Sina Corp), Shareholder Agreement (China Real Estate Information Corp), Shareholders Agreement (E-House (China) Holdings LTD)
Right of First Offer. (a) Other If at any time from April 29, 2013 and prior to the consummation of an Investor Exit Event, (i) Parent or any of its Permitted Transferees desires to effect a Sale of all or any portion of Securities it owns or holds to a Third Party or Third Parties (including any transfer by operation of law, merger, recapitalization or other similar transaction), other than Prohibited Transfersup to 7,000,000 Ordinary Shares (calculated in aggregate with all such prior Sales, if and as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like), or (ii) any Management Shareholder or any of his or her Permitted Transferees desires to effect a Sale of all or any portion of Securities he or she owns or holds to a Third Party or Third Parties, other than up to 20% of the Ordinary Shares (on an as-converted basis) or Ordinary Shares issuable upon the exercise, conversion or exchange of any options, warrants or other rights to acquire Ordinary Shares held by such Person(s) as at April 29, 2013 (calculated in aggregate with all such prior Sales and as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like) (each, a “Management Sale”), in each case, Parent shall deliver a written notice (an “Offer Notice”) thereof to Investor, which notice shall set forth all of the material terms and conditions, including the number of Securities to be sold (the “Investor ROFO Shares”) and the purchase price per share (the “Offer Price”) (which shall be payable solely in cash in one lump sum payment), on which Parent or such Management Shareholder offers or their relevant Permitted Transferee(s) to sell the Offered Shares to Investor (the “Investor ROFO”); provided, however, none of the following transactions shall be subject to the Investor ROFO: (x) any Sale of any equity securities of Parent, (y) any Sale of any Securities by Parent (or any of its Permitted Transferees) to any Permitted Transferee of Parent or any Sale of any Securities among any such Persons, and (z) any Sale of any Securities by any Management Shareholder (or any of his or her Permitted Transferees) to any Permitted Transferee of such Management Shareholder or any Sale of any Securities among any such Persons.
(b) If at any time after the Lock expiration of the Lock-Up Period and prior to the consummation of a Shareholder Parent Exit Event, (i) any Investor Entity desires to Transfer effect a Sale of all or any portion of the Securities it owns or holds to a Third Party or Third Parties (including any transfer by operation of law, merger, recapitalization or other than pursuant similar transaction), or (ii) Alibaba or AIL desires to effect a Sale of all or any portion of the equity securities of any Investor Entity to a Third Party or Third Parties that results in a direct or indirect Sale of the Securities owned or held by such Investor Entity (including any transfer by operation of law, merger, recapitalization or other similar transaction), in each case, Investor shall deliver an Offer Notice to Parent, which notice shall set forth all of the material terms and conditions, including the number of Securities subject to such Sale (the “Parent ROFO Shares”) and the Offer Price (which shall be payable solely in cash in one lump sum payment), on which Investor offers to sell the Offered Shares to Parent (the “Parent ROFO”); provided, however, that none of the following transactions shall be subject to the Parent ROFO: (A) any Sale of any equity securities of AIL or any of its direct or indirect holding companies, (B) any Sale of any Securities by any Investor Entity to any Permitted TransferTransferee of Investor or any Sale of any Securities among any such Persons; (C) any Sale of up to 5% of the Acquired Shares by any of the Investor Entities, including as a result of a Sale of the equity securities of any Investor Entity (calculated in the aggregate with all such Transfer prior Sales) or (D) any transfer or issuance of up to 25% of the issued and outstanding equity securities of any Investor Entity (in the case of an issuance, after taking into account such issuance) to Existing Financial Investors (it being understood that in no event shall be permitted only if any transfer or issuance pursuant to this sub-clause (D) result in neither Alibaba nor AIL directly owning, legally and beneficially, 75% or more of the issued and outstanding equity securities of such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3Investor Entity after such transfer or issuance); provided however that the provisions of this Section 3.3 Parent ROFO shall not apply to Permitted Transfers.
any Sale contemplated by paragraph (bC) The RFO Offeror shallor (D) that, prior when aggregated with any other Sales made pursuant to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice paragraph (“RFO Notice”C) to each other Shareholder or (each, an “RFO Offeree”D), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)would result in Alibaba and AIL, (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at aggregate, ceasing to hold, indirectly through the same price per Ordinary Share and on Investor Entities 75% or more of the same terms and conditions as set forth thereinAcquired Shares.
(c) The RFO Offeree(sprovisions set forth in Section 4.05(d) collectively to 4.05(h) shall have the right apply in respect of each Investor ROFO and each Parent ROFO.
(i) The receipt of an Offer Notice by a ROFO Holder shall constitute an exclusive offer by a Prospective Seller to purchase (the “Right of First Offer”), sell to such ROFO Holder any or all of the RFO Ordinary Offered Shares by delivering a written notice (at the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s))Price. Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-Such offer shall lapse remain open and irrevocable until the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase expiration of the RFO Ordinary Shares within thirty (30) days thereafter upon after receipt of such Offer Notice by the terms set forth in ROFO Holder (the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, “Offer Period”). At any Governmental Authority in connection with such purchase to be obtained or made, to the extent time prior to the expiration of the RFO Purchase Period reasonably appropriate actions Offer Period, the ROFO Holder shall have been taken the right to accept the Prospective Seller’s offer as to any or all of the Offered Shares by giving a written notice of election (the “Notice of Election”) to the Prospective Seller.
(ii) If the ROFO Holder accepts the Prospective Seller’s offer in accordance with this Section 4.05(d), the ROFO Holder shall purchase from the Prospective Seller, and the Prospective Seller shall sell to the ROFO Holder, such number of Offered Shares as to which the ROFO Holder shall have accepted the Prospective Seller’s offer pursuant to subparagraph (d)(i) above. The price per Security to be paid by the RFO Offeree(sROFO Holder shall be the Offer Price specified in the Offer Notice, payable in immediately available funds and in accordance with the terms of the Offer. In the event the ROFO Holder has not elected to purchase the entire amount of Offered Shares, the Prospective Seller may sell such remaining amount of Offered Shares in accordance with Section 4.05(f) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysas Remaining Shares.
(e) If The Prospective Seller and the RFO Offeree(s) ROFO Holder shall not have completed the purchase of all select, for consummation of the RFO Ordinary Sale of Offered Shares within to the RFO Purchase ROFO Holder, a date not later than thirty (30) days (or longer, if so required pursuant to applicable Law) after the expiration of the Offer Period. At the consummation of such Sale, as extended (i) the Prospective Seller shall, against delivery by the ROFO Holder of the Offer Price multiplied by the number of Securities being purchased by the ROFO Holder, deliver to the ROFO Holder certificates evidencing the Offered Shares being sold, duly endorsed in blank or accompanied by written instruments of transfer in form reasonably satisfactory to the ROFO Holder duly executed by the Prospective Seller, free and clear of any and all Encumbrances other than this Agreement or as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all Articles of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article IIIAssociation; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation Prospective Seller shall procure that upon transfer of such Offered Shares to the RFO Offeree(sROFO Holder and payment therefor in accordance with this Agreement, the ROFO Holder will acquire such Offered Shares free and clear of all Encumbrances, and there will be no agreement, arrangement or obligation to create or give any Encumbrances in relation to any Offered Shares, other than this Agreement or as provided in the Articles of Association.
(f) In the event that such terms comply with clause (i) hereof prior the ROFO Holder shall have received an Offer Notice from a Prospective Seller but the Prospective Seller shall not have received a Notice of Election indicating a desire to purchase, in the consummation of such sale; and provided furtheraggregate, that all the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent Offered Shares prior to the expiration of the Transfer Offer Period reasonably appropriate actions or (ii) the ROFO Holder shall have been taken given a Notice of Election to the Prospective Seller but shall have failed to consummate, as a result of a breach or fault of the ROFO Holder, a purchase of the Offered Shares it elected to purchase in such Notice of Election within the time frame specified in paragraph (e) above, then the Prospective Seller shall thereafter be entitled to effect a Sale of all Offered Shares not accepted for purchase by the RFO Offeror ROFO Holder pursuant to obtain such approvalsa Notice of Election and/or, consents if applicable, all Offered Shares elected for purchase in the Notice of Election but the purchase of which the ROFO Holder so failed to consummate as a result of a breach or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end fault of the Transfer ROFO Holder (the “Remaining Shares”); provided that:
(A) the total number of Securities sold by the Prospective Seller to any one or more Third Parties shall be not more than the number of Remaining Shares; and
(B) all the Securities that are sold or otherwise disposed of by the Prospective Seller pursuant to this paragraph (f) are sold (1) within sixty (60) days (or longer, if so required pursuant to applicable Law) after the expiration of the Offer Period, as extended as provided herein(2) at an amount not less than the Offer Price (on a per share basis) included in such Offer Notice and (3) on material terms and conditions no more favorable to the prospective transferee than those specified in such Offer Notice.
(g) In the event that the ROFO Holder shall have received an Offer Notice from a Prospective Seller, the RFO Offeror has Prospective Seller shall not completed have received a Notice of Election indicating a desire to buy all the Transfer Offered Shares prior to the expiration of the RFO Ordinary SharesOffer Period and such Prospective Seller shall not have sold the Remaining Shares before the expiration of the period specified in subclause (f)(B) above, then such Prospective Seller shall not give another Offer Notice for a period of one hundred eighty (180) days from the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with day the Offer Notice was delivered.
(h) Notwithstanding anything in this Section 4.05, the provisions of this Section 3.34.05 shall not be applicable to any Sale to a Permitted Transferee.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 5 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Sina Corp), Shareholder Agreement (WEIBO Corp)
Right of First Offer. (a) Other than Prohibited Transfers, if at If the Borrower or any time after the Lock Up Period a Shareholder desires to Transfer Subsidiary contemplates undertaking an issuance of any Indebtedness (other than pursuant (x) Indebtedness permitted under Section 8.03(a), (c), (d), (e), (f), (j), (k) or (m) or (y) Indebtedness in an aggregate principal amount below the Threshold Amount), then, not less than thirty (30) Business Days prior to any Permitted Transferthe proposed date of such issuance, such Transfer the Borrower shall be permitted only if such Shareholder provide written notice (the a “RFO OfferorDebt Issuance Notice”) fully complies with thereof to the terms of this Section 3.3; provided that Lenders, and shall deliver promptly to the provisions of this Section 3.3 shall not apply to Permitted TransfersLenders such information concerning such issuance as the Lenders may reasonably request.
(b) The RFO Offeror shall, prior to the Transfer For a period of any Ordinary Shares to which this Section 3.3 applies, give written notice twenty (“RFO Notice”20) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of Business Days (the “RFO Ordinary SharesExclusivity Period”)) after receipt by the Lenders of a Debt Issuance Notice, (ii) the proposed purchase price per RFO Ordinary ShareLenders shall have the exclusive option, and payment and other but not the obligation, to propose the material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First OfferProposed Terms”), any or all of the RFO Ordinary Shares ) under which they would be willing to provide such Indebtedness by delivering a written notice (the a “RFO ExerciseProposed Term Sheet”) thereof to the Borrower, setting forth such Proposed Terms. Failure by the Lenders to deliver a Proposed Term Sheet within the applicable Exclusivity Period shall be deemed an election by the Lenders not to provide such Indebtedness. If the Lenders deliver a Proposed Term Sheet to the Borrower that purports to provide not less than the aggregate amount of exercise financing contemplated by the issuance contemplated in the Debt Issuance Notice, then neither the Borrower nor any Subsidiary may then undertake any such issuance with any other Person unless such issuance with such other Person (x) includes financial covenants and events of default and other terms including amortization, mandatory prepayments and maturity dates that are more favorable (taken as a whole) to the Borrower and its Subsidiaries than the Indebtedness contemplated by the Proposed Term Sheet (such determination to be made by the Borrower in good faith) and (y) has an All-In-Yield that is less than the All-In-Yield of the Right Indebtedness contemplated by the Proposed Term Sheet; provided, that, prior to undertaking any such issuance with any other Person, the Borrower or such Subsidiary shall provide the Lenders with at least ten (10) Business Days’ notice thereof (and such information with respect thereto as the Lenders shall reasonably request) and afford the Lenders a period of First Offer to the RFO Offeror within 20 five (twenty5) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares thereafter to propose a Proposed Term Sheet containing economic terms at least as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than Borrower or such Subsidiary as the economic terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Indebtedness.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 4 contracts
Sources: Credit Agreement (Establishment Labs Holdings Inc.), Credit Agreement (Establishment Labs Holdings Inc.), Credit Agreement (Establishment Labs Holdings Inc.)
Right of First Offer. 5.1 If at anytime, the Company proposes to issue any Stock, any rights, options or warrants to acquire Stock or any notes, debentures, preferred shares or other securities or rights, which are ultimately convertible or exercisable into, or exchangeable for, Ordinary Shares (collectively, “Equity Securities”) (after obtaining any requisite approval required under Section 11.3), the Company shall first offer such Equity Securities to each Shareholder in a written notice (an “Issuance Notice”) setting forth:
(a) Other than Prohibited Transfersa description of the Equity Securities to be issued, if at any time after including the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.rights and powers associated therewith;
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed such Equity Securities to be disposed of offered (the “RFO Ordinary SharesNew Securities”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.; and
(c) The RFO Offeree(s) collectively shall have the right price and terms upon which it proposes to offer the New Securities.
5.2 Each Shareholder who wishes to purchase any New Securities (a “Pre-emptive Shareholder”) shall provide the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering Company with a written notice (the “RFO ExerciseExercise Notice”) specifying the maximum number of exercise of the Right of First Offer New Securities which it irrevocably commits to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice purchase (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more whollyPre-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Sharesemptive Amount”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon of the terms set forth receipt by such Pre-emptive Shareholder of the Issuance Notice. For the avoidance of doubt, each Pre-emptive Shareholder may specify in the RFO Notice; provided, however, that such period its Exercise Notice a Pre-emptive Amount higher or lower than its Pro-rata Amount. The New Securities shall be extended following allocated among each Pre-emptive Shareholder (with rounding to avoid fractional shares) in proportion to its respective Pro-rata Amount provided that in no event shall an amount greater than such date as necessary Pre-emptive Shareholder’s Pre-emptive Amount be allocated to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysPre-emptive Shareholder.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter 5.3 Any excess New Securities (the “Transfer PeriodExcess New Securities”), ) not yet allocated after employing the procedures set out in Section 5.2 shall be allocated among all the Pre-emptive Shareholders whose Pre-emptive Amounts have not yet been satisfied in proportion to dispose of the RFO Ordinary Shares each such Pre-emptive Shareholder’s respective Excess Pro-rata Amount (with rounding to avoid fractional shares) PROVIDED THAT in one or no event shall a Pre-emptive Shareholder be required to purchase more Transfers thereof without being subject New Securities pursuant to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof Section 5.3 than the terms as specified in the RFO Exercise Notice of such Pre-emptive Shareholder, and the procedures set out in this Section 5.3 shall be repeatedly employed until the Pre-emptive Amounts of all Pre-emptive Shareholders shall have been satisfied or until the total number of the New Securities have been fully allocated to all the Pre-emptive Shareholders after employing the procedures set out in this Section 5.3, whichever is to occur first. A Pre-emptive Shareholder’s “Pro-rata Amount” is equal to the product obtainable by multiplying (x) the total number of New Securities, by (y) a fraction, the numerator of which shall be the number of Ordinary Shares Equivalents owned by such Pre-emptive Shareholder on the date of the Issuance Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation denominator of such sale; and provided further, that the Transfer Period which shall be extended following such the aggregate number of all Ordinary Shares Equivalents owned by all the Pre-emptive Shareholders on the date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Issuance Notice.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 4 contracts
Sources: Series C Preference Shares Purchase Agreement (Home Inns & Hotels Management Inc.), Shareholders Agreement (Home Inns & Hotels Management Inc.), Shareholders Agreement (Home Inns & Hotels Management Inc.)
Right of First Offer. No Shareholder shall Transfer any of its Company Shares other than to a Permitted Transferee, except as set forth below:
(a) Other than Prohibited Transfers, if at any time after the Lock Up Period If either Shareholder (a Shareholder desires “ROFO Seller”) proposes to Transfer other than pursuant any or all of such ROFO Seller’s Company Shares, prior to any Permitted TransferTransfer of Company Shares, such Transfer ROFO Seller shall be permitted only if such deliver to the other Shareholder (the “RFO OfferorROFO Recipient”) fully complies with written notice (the “ROFO Notice”), stating such ROFO Seller’s intention to effect such a Transfer, the number of Company Shares subject to such Transfer (the “ROFO Shares”), the price per ROFO Share or the formula by which such price per ROFO Share is to be determined (which price must consist of only cash consideration) (the “ROFO Price”) and the other material terms and conditions of this Section 3.3; provided the proposed Transfer. The ROFO Notice may require that the provisions ROFO Seller and ROFO Recipient enter into a definitive agreement with respect to any sale of this Section 3.3 shall not apply the ROFO Shares to Permitted Transfersthe ROFO Recipient on a date that is no less than thirty (30) days and no later than sixty (60) days after the date of the ROFO Notice.
(b) The RFO Offeror shallROFO Recipient will have the right, prior to the Transfer exercisable by delivery of any Ordinary Shares to which this Section 3.3 appliesan irrevocable written offer (each, give written notice (a “RFO ROFO Offer Notice”) to each other Shareholder the ROFO Seller within thirty (each30) days after receipt of the ROFO Notice, to make an “RFO Offeree”)offer to purchase all, setting forth (i) but not less than all, of the number of Ordinary ROFO Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed for a purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell equal to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share ROFO Price and on the same other proposed terms and conditions as set forth thereinin the ROFO Notice (each, a “ROFO Offer”).
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all Following delivery of the RFO Ordinary ROFO Offer Notice, if applicable, the ROFO Recipient will purchase the ROFO Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer cash equal to the RFO Offeror within 20 (twenty) Business Days from aggregate ROFO Price due for such ROFO Shares by wire transfer to an account designated in writing by the date of ROFO Seller against delivery of certificates or other instruments representing the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary ROFO Shares as shall be so purchased, collectively, by it being understood that the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all consummation of such remaining RFO Ordinary Shares (sale shall occur only after the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, receipt of required authorizations as set forth in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter seSection 3.3(e), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have no ROFO Offer Notice is delivered an RFO Exercise to the RFO Offeror within ROFO Seller, or if the RFO Response Period ROFO Recipient elects not to make an offer to purchase all of the ROFO Shares pursuant to this Section 3.3, then the ROFO Seller shall be permitted for a period of six (6) months from the date the ROFO Offer Notice was due to be received by the ROFO Seller to sell to a Third Party not less than all of the RFO Ordinary SharesROFO Shares at a price not less than that contained in the ROFO Notice and otherwise on other terms and conditions not materially less favorable to the ROFO Seller than those contained in the ROFO Notice. Promptly after such sale to such Third Party, the RFO Offeror ROFO Seller will notify the ROFO Recipient of the closing thereof and RFO Offeree(s) shall be respectively bound, will furnish such evidence of the completion and shall complete the time of completion of such sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that and conditions of such period shall sale as may reasonably be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken requested by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysROFO Recipient.
(e) If Upon exercise by the RFO Offeree(s) shall not have completed the purchase ROFO Recipients of all their rights of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in first offer under this Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made3.3, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken an offer or offers are received by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary ROFO Seller for all ROFO Shares, the RFO Offeror ROFO Recipients and the ROFO Seller shall no longer be permitted legally obligated to dispose consummate the purchase contemplated thereby and shall use their reasonable best efforts to secure any governmental authorization required, to comply as soon as reasonably practicable with all applicable Laws and to take all such other actions and to execute such additional documents as are reasonably necessary or appropriate in connection therewith and to consummate the purchase of such RFO Ordinary the ROFO Shares without again fully complying with the provisions of this Section 3.3as promptly as practicable.
(f) The RFO Offeror shallIn the event that such Transfer is not consummated under Sections 3.3(c) or (d), upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to then this Section 2.2 hereof, 3.3 shall again apply and such director ROFO Seller shall execute a letter of resignationnot Transfer such Company Shares without again complying with this Section 3.3.
Appears in 4 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Saieh Bendeck Alvaro), Transaction Agreement (Corpbanca/Fi)
Right of First Offer. (a) Other than Prohibited Transfers, if The Company hereby grants to ABG-Pulmonx Limited (“ABG”) a primary right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined) of up to 50% of the Shares offered at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder future sale (the “RFO OfferorABG Pro Rata”) fully complies until ABG has purchased $50,000,000 in aggregate of equity securities of the Company, whether pursuant to the ABG Pro Rata or otherwise, and which shall include the Stock (as defined in Purchase Agreement) purchased by ABG pursuant to the Purchase Agreement (the “ABG Limit”) in accordance with the terms of this Section 3.3; provided that the provisions of this Section 3.3 2.4(a)(i) and (ii).
(i) The Company shall not apply deliver a notice (the “ABG RFO Notice”) to Permitted TransfersABG stating (i) its bona fide intention to offer such Shares, (ii) the price and terms, if any, upon which it proposes to offer such Shares and (iii) the maximum number of Shares that ABG may purchase under its ABG Pro Rata (the “ABG Maximum Shares”).
(ii) Within 10 business days after delivery of the ABG RFO Notice (the “ABG Pro Rata Period”), ABG may elect to purchase or obtain, at the price and on the terms specified in the ABG RFO Notice, up to the ABG Maximum Shares.
(b) The RFO Offeror shall, prior Subject to the Transfer of any Ordinary Shares to which terms and conditions specified in this Section 3.3 applies2.4, give written notice and after the ABG Pro Rata Period, the Company hereby grants to each Major Investor (as hereinafter defined) a secondary right of first offer with respect to future sales by the Company of its Shares. For purposes of this Section 2.4, a “Major Investor” shall mean any person who holds at least 500,000 shares of Preferred Stock or the Common Stock issued upon conversion thereof (subject to adjustment for stock splits, stock dividends, reclassifications or the like). For purposes of this Section 2.4, the definition of Major Investor includes any general partners, managing members or affiliates of a Major Investor, including affiliated funds. A Major Investor who chooses to exercise the right of first offer may designate as purchasers under such right itself or its partners or affiliates, including affiliated funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exercisable for any shares of, any class of its capital stock (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) Company shall first make an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all offering of such remaining RFO Ordinary Shares (to ABG until it has reached the “Remaining RFO Ordinary Shares”ABG Limit in accordance with Section 2.4(a) shall immediately be re-offered by the RFO Offeror and then to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, each Major Investor in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying accordance with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.following provisions:
Appears in 4 contracts
Sources: Investors’ Rights Agreement (Pulmonx Corp), Investors’ Rights Agreement (Pulmonx Corp), Investors’ Rights Agreement (Pulmonx Corp)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period Except for a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, no Member shall directly Transfer any Membership Interest unless such Member first complies with the provisions of Section 5.02, except for a direct Transfer shall be of such Member’s entire Membership Interest to the extent expressly permitted only if such Shareholder (the “RFO Offeror”) fully complies by this Section 5.01 following compliance with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers5.01.
(b) The RFO Offeror shallA Member (the “ROFO Seller”) shall at any time have the right, prior to the Transfer by delivery of any Ordinary Shares to which this Section 3.3 applies, give written notice (a “RFO ROFO Notice”) to each other Shareholder Members, to request that the other Members specify the purchase price (each, an “RFO Offeree”which must be in cash), setting forth (i) and other terms and conditions on which such other Member is willing to purchase all, but not less than all, of the number of Ordinary Shares proposed to be disposed of ROFO Seller’s Membership Interest (the “RFO Ordinary SharesROFO Interest”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(sWithin thirty (30) collectively shall have the right days following delivery of a ROFO Notice, any such other Member may offer to purchase all, but not less than all, of the ROFO Interest by providing written notice to the ROFO Seller (a “ROFO Offer Notice”), specifying the purchase price, in cash (the “Right of First OfferROFO Price”), and other terms and conditions on which such other Member is willing to purchase the ROFO Interest. The ROFO Seller shall have thirty (30) days following the delivery of a ROFO Offer Notice to elect to accept any or all such offer by delivery of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer such acceptance to the RFO Offeror within 20 applicable Member (twenty) Business Days from the date of delivery of the RFO Notice (the a “RFO Response PeriodROFO Acceptance Notice”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares ROFO Seller delivers a ROFO Acceptance Notice within thirty (30) days thereafter upon following delivery of the terms set forth in ROFO Offer Notice, each such party and the RFO Notice; providedCompany shall use its commercially reasonable efforts to obtain, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations withpromptly as possible thereafter, any Governmental Authority in connection with such purchase and all consents, approvals and authorizations of any governmental authority required to be obtained or made, in order to the extent prior to the expiration consummate such sale and purchase. A sale and purchase of the RFO Purchase Period reasonably appropriate actions have been taken by ROFO Interest to a Member pursuant to this Section 5.01 shall be made at the RFO Offeree(soffices of the Company on or before the later of (i) to obtain such the date that is one hundred and twenty (120) days following delivery of the ROFO Acceptance Notice or (ii) the date that is five (5) Business Days following receipt of all consents, approvals, consents or authorizations, or make and authorizations of any governmental authority required to be obtained in order to consummate such filings or registrations; sale and provided further that no such extension shall exceed 60 dayspurchase.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares no Member delivers a ROFO Offer Notice within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at days after receiving the end of ROFO Notice, or if the Transfer Period, as extended as provided hereinROFO Seller does not accept an offer from any Member within thirty (30) days after receiving the ROFO Offer Notice, the RFO Offeror has ROFO Seller may, during the next 180 days, directly Transfer the ROFO Interest to a third party Transferee for an all cash purchase price not completed less than the highest ROFO Price offered by any other Member, and upon material terms no more favorable in the aggregate to the proposed transferee than those specified in the ROFO Offer Notice, provided that such direct Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying complies with the provisions all other applicable terms and restrictions of this Agreement, including Article IV. For the avoidance of doubt, Section 3.35.02 shall not apply to such direct Transfer.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 4 contracts
Sources: Limited Liability Company Agreement (Crestwood Equity Partners LP), Contribution Agreement (Consolidated Edison Inc), Contribution Agreement (Crestwood Midstream Partners LP)
Right of First Offer. (ai) Other than Prohibited TransfersDuring any period between the expiration of the Restricted Period and the consummation of a Qualified Public Offering, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Holder (the “RFO OfferorTransferring Holder”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply wishes to Permitted Transfers.
(b) The RFO Offeror shall, prior to the effect a Transfer of any Ordinary Shares to which this Section 3.3 appliesits Common Shares, give then such Transferring Holder shall first deliver a written notice (the “RFO ROFO Notice”) to each other Shareholder all Holders whose Proportionate Percentage is at least 5% (each, an the “RFO OffereeROFO Offerees”), setting forth (i) . Such ROFO Notice shall disclose the number of Ordinary Common Shares proposed to be disposed of Transferred (the “RFO Ordinary Offered Shares”)) and the material terms of any offer the Transferring Holder has received or is contemplating, if applicable.
(ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively Each ROFO Offeree shall have the right to purchase (the “Right of First Offer”)) to provide the Transferring Holder, any or within 45 days of the date of the ROFO Notice, an irrevocable written offer to acquire all of the RFO Ordinary Offered Shares, upon the price, terms and conditions on which such ROFO Offeree is willing to purchase the Offered Shares by delivering a written notice (the “RFO ExerciseProposed Offer”).
(iii) The Transferring Holder, in its sole discretion, may elect to accept any Proposed Offer by delivering an irrevocable written notice of acceptance (the “ROFO Acceptance Notice”) of exercise of the Right of First Offer to the RFO Offeror ROFO Offerees and the Company within 20 (twenty) Business Days from 60 days after the date of delivery of the RFO ROFO Notice (the “RFO Response ROFO Acceptance Period”), irrevocably stating therein ; provided that (A) if such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as Transferring Holder receives a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is Proposed Offer from more than one other RFO ROFO Offeree, such Transferring Holder may only accept the Proposed Offer with the most favorable terms and conditions (including price) in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)its reasonable discretion, and (B) if such Transferring Holder (x) receives Proposed Offers with equivalent terms (including price, conditions and other RFO Offeree(sterms and conditions) may from more than one ROFO Offeree and (y) elects to accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days one of such re-offerProposed Offers, after which time such re-offer Transferring Holder shall lapse accept all such Proposed Offers with equivalent terms and the re-offer for Offered Shares shall be allocated pro rata among such Remaining RFO Ordinary Shares will be deemed to have been declinedROFO Offerees based on their respective ROFO Proportionate Percentages.
(div) If The ROFO Offerees purchasing the RFO Offeree(s) shall have delivered an RFO Exercise Common Shares pursuant to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(sthis Section 4(c) shall be respectively boundentitled to require the Transferring Holder to provide representations and warranties regarding (A) its power, authority and shall complete legal capacity to enter into such Transfer of Common Shares; (B) valid right, title and interest in such Common Shares and the sale Transferring Holder’s ownership of such Common Shares; (C) the absence of any Encumbrances on such Common Shares; and purchase (D) the absence of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; providedany violation, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations fromdefault, or filings acceleration of any agreement or registrations with, any Governmental Authority in connection with instrument pursuant to which such purchase to be obtained Transferring Holder or made, to the extent prior to assets of such Transferring Holder are bound as the expiration result of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 dayssale.
(ev) If Subject to any Tag-Along Rights, after the RFO Offeree(s) shall not have completed the purchase of all termination of the RFO Ordinary Shares within the RFO Purchase ROFO Acceptance Period, as extended as provided the Transferring Holder may, during the 120 day period following the ROFO Acceptance Period, Transfer (or enter into an agreement to Transfer and at any time Transfer in Section 3.3(d), or together have failed to deliver RFO Exercises within accordance with such agreement) the RFO Response Period for all of Offered Shares at and upon the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, price and other material terms and conditions that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not are more favorable to the purchasers thereof Transferring Holder than the terms specified most favorable Proposed Offer that the Transferring Holder received (such Transfer, the “Permitted ROFO Transfer”). If the Transferring Holder has not consummated a Permitted ROFO Transfer (or has not entered into an agreement with respect thereto) within such 120 day period, the Transferring Holder shall not thereafter Transfer any Common Shares (including such Offered Shares), whether pursuant to a Proposed Offer or otherwise, without first providing a new ROFO Notice to the ROFO Offerees in the RFO Notice manner provided above, and (ii) the RFO Offeror provides written confirmation such proposed Transfer shall again be subject to the RFO Offeree(srequirements of this Section 4(c).
(vi) that Upon the closing of the sale of any Common Shares pursuant to this Section 4(c), the Transferring Holder shall deliver at such terms comply closing, against payment of the purchase price therefor, certificates representing those Common Shares to be sold, duly endorsed for transfer or accompanied by duly endorsed stock powers, and evidence of the absence of Encumbrances and adverse claims with clause respect thereto and of such other matters as are deemed necessary by the Company for the proper Transfer of such Common Shares on the books of the Company.
(ivii) hereof prior Notwithstanding anything to the consummation contrary in this Agreement, this Section 4(c) shall not apply to (A) Permitted Transfers, (B) Transfers of such sale; and provided furtherCommon Shares made in a Qualified Public Offering, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from(C) Transfers of Common Shares made by Dragged Holders in a Drag-Along Transaction, or filings or registrations with, any Governmental Authority (D) Transfers of Common Shares made in connection with such Transfers to be obtained or made, to the extent prior to the expiration exercise of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Tag-Along Rights.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 3 contracts
Sources: Stockholder Agreement, Stockholder Agreement (Popular Inc), Stockholder Agreement (Popular Inc)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth If Novartis notifies Alnylam in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all writing within [**] after receipt of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Alnylam Opportunity Notice (the “RFO "Alnylam Opportunity Response Period”"; such notice, the "Alnylam Opportunity Response") that it wishes to Discover, Develop or Commercialize the RNAi Compounds or RNAi Products under such Alnylam Program, then:
(A) if such Alnylam Program is directed to a product with respect to which the applicable Regulatory Authority in the United States or one of the Major Market Countries has not accepted a bona fide IND filing (a "Pre-IND Alnylam Program"), irrevocably stating therein then such portion of the RFO Ordinary Shares Alnylam Program and related RNAi Compound, product and Targets shall thereafter be included under this Agreement with each being treated as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof an "Active Program," "Discovered RNAi Compound," "Collaboration Product," and the proportion thereof to be purchased by each RFO Offeree "Selected Targets" (or provided that such Affiliate(s)). Each RFO Offeree shall have the right, but Targets shall not be required, to purchase (treated as Selected Targets or cause its wholly-owned Affiliate(sSupplemental Targets for the purposes of calculating the Selected Target Threshold or Supplemental Target Threshold respectively) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Noticerespectively; provided, however, that without prejudice to the binding nature of the foregoing, the Parties [**] to agree upon [**], provided that in no event shall such [**] be less than the [**], which [**] shall include all [**] (determined in accordance with the [**] under this Agreement) for the [**] involved in such Alnylam Program, all [**] with respect to such Alnylam Program, the Infrastructure Fees which would have been payable by Novartis pursuant to Section 4.3(c) if the Alnylam Program had been an Active Program, and all milestones which would have been payable by Novartis pursuant to Section 4.4(c) if the Alnylam Program had been an Active Program; or
(B) if such Alnylam Program is directed to a product with respect to which the applicable Regulatory Authority in the United States or one of the Major Market Countries has accepted a bona fide IND filed by Alnylam (a "Post-IND Alnylam Program"), the Parties shall use commercially reasonable efforts to negotiate and execute a definitive agreement to reflect the rights and obligations of each Party with respect to such RNAi Compound (an "Alnylam Program Agreement") within [**] after the date Novartis received the Alnylam Opportunity Notice. The Alnylam Program Agreement shall include (i) non-financial terms which are substantially similar to the terms set forth herein applicable to "Active Programs," "Discovered RNAi Compounds" and "Collaboration Products," (provided that any Targets covered by such Alnylam Program shall not be treated as Selected Targets or Supplemental Targets for the purposes of calculating the Selected Target Threshold or Supplemental Target Threshold, respectively) and (ii) appropriate financial consideration after giving effect to the maturity of Alnylam's Discovery, Development and Commercialization activities up through and including the Alnylam Opportunity Notice. During the period in which the Parties are using commercially reasonable efforts to negotiate and execute an Alnylam Program Agreement, Alnylam shall give reasonable consideration to any Novartis input on any agreements that Alnylam desires to enter into with any Research Institution with respect to such Alnylam Program. During the Alnylam Opportunity Response Period, Alnylam shall provide, at Novartis's reasonable request, information (but not the identity of the RNAi Compounds involved) that would be extended following relevant in making a decision about whether or not to participate in such Alnylam Program.
(ii) If: (A) Novartis indicates during the Alnylam Opportunity Response Period that it has no interest in a Pre-IND Alnylam Program; or (B) with respect to Post-IND Alnylam Programs, Novartis and Alnylam are unable, after using commercially reasonable efforts, to enter into an Alnylam Program Agreement within [**] after the date as necessary Novartis received the Alnylam Opportunity Notice, then Alnylam and its Affiliates shall for a period of [**] thereafter be free, without any further obligation to permit all required approvalsNovartis, consents to enter into an agreement with a Third Party seeking to Discover, Develop or authorizations fromCommercialize, or filings or registrations withto license any Third Party to Discover, Develop and Commercialize, any Governmental Authority in connection with RNAi Compounds and RNAi Products pursuant to such purchase to be obtained or madeAlnylam Program on terms no more favorable, overall, to such Third Party than those offered to Novartis under Section 2.6(c)(i).
(iii) If: (A) Novartis indicates during the extent Alnylam Opportunity Response Period that it has no interest in a Post-IND Alnylam Program; or (B) Novartis fails to provide Alnylam an Alnylam Opportunity Response prior to the expiration of the RFO Purchase Alnylam Opportunity Response Period reasonably appropriate actions have been taken by the RFO Offeree(s) with respect to obtain such approvalseither a Pre-IND Alnylam Program or a Post-IND Alnylam Program, consents then Alnylam and its Affiliates shall be free, without any further obligation to Novartis, to enter into an agreement with a Third Party seeking to Discover, Develop or authorizationsCommercialize, or make such filings or registrations; to license any Third Party to Discover, Develop and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations withCommercialize, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; RNAi Compounds and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required RNAi Products pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationAlnylam Program.
Appears in 3 contracts
Sources: Research Collaboration and License Agreement (Alnylam Pharmaceuticals, Inc.), Research Collaboration and License Agreement (Alnylam Pharmaceuticals, Inc.), Research Collaboration and License Agreement (Alnylam Pharmaceuticals, Inc.)
Right of First Offer. 13.1 If any AHG Shareholder (aeach, a “ROFO Seller”) Other wishes to directly Transfer (other than Prohibited Transferswith respect to a Transfer permitted under Clauses 11.1.1 and 11.1.3) all or any portion of its Securities to a Third Party Purchaser (a “Prospective Buyer”) and if such Transfer of such Securities to a Prospective Buyer would, if when taken together with any Securities Transferred by such ROFO Seller in the prior twenty-four (24) months, represent a Beneficial Ownership of at any time after least five per cent. (5%) of the Lock Up Period Voting Shares in issue, such ROFO Seller shall not be entitled to effect such proposed Transfer until:
13.1.1 it has first issued written notice of the proposed Transfer (a Shareholder desires “ROFO Notice”) to the other AHG Shareholders (each such other AHG Shareholder, a “ROFO AHG Shareholder”) and the Company; and
13.1.2 the other provisions of this Clause 13 have been complied with.
13.2 The ROFO Notice shall set out:
13.2.1 the number and class of Securities that each ROFO Seller wishes to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO OfferorSubject Securities”);
13.2.2 each ROFO AHG Shareholder’s Proportionate Entitlement to acquire such Subject Securities; and
13.2.3 the price per Subject Security on which the ROFO Seller wishes to Transfer the Subject Securities.
13.3 Within ten (10) Business Days following the date of the ROFO Notice (the “ROFO Offer Period”), any ROFO AHG Shareholder (individually or in combination with any other ROFO AHG Shareholder) may elect to make an offer to purchase any number of the Subject Securities at the price set out in the ROFO Notice by issuing a written notice (a “ROFO Offer Notice”) fully complies with to the terms ROFO Seller and the Company setting out:
13.3.1 the cash price per Subject Security offered (which shall be no less than the price set out in the ROFO Notice);
13.3.2 the number of this Section 3.3Subject Securities each ROFO AHG Shareholder wishes to purchase from the ROFO Seller, which may include additional Subject Securities which the ROFO AHG Shareholder is prepared to purchase in excess of its Proportionate Entitlement (if such indication is included, such notice shall also constitute an “Excess Securities Notice”); provided and
13.3.3 if the ROFO Notice indicates that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of Subject Securities would result in the Prospective Buyer Beneficially Owning or controlling more than fifty per cent. (50%) of the outstanding Securities, whether such ROFO AHG Shareholder intends to exercise its tag along rights pursuant to Clause 14 if the ROFO Seller proceeds with the Transfer to the Prospective Buyer, (each such ROFO AHG Shareholder delivering a ROFO Offer Notice, a “ROFO Offeror”).
13.4 If a ROFO AHG Shareholder has not issued a ROFO Offer Notice by the end of the ROFO Offer Period in accordance with Clause 13.3, such ROFO AHG Shareholder shall be deemed to have waived all of its rights under this Clause 13 to make an offer for and/or to purchase any Ordinary Shares to which this Section 3.3 appliesSubject Securities set out in the relevant ROFO Notice.
13.5 Within ten (10) Business Days after the expiry of the ROFO Offer Period, give the ROFO Seller shall issue a written notice (each a “RFO ROFO Sale Notice”) to each other ROFO Offeror (or combination of ROFO Offerors) (if any) setting out:
13.5.1 subject to Clause 13.5.2, confirmation that the offer contained in such ROFO Offeror’s ROFO Offer Notice has been accepted;
13.5.2 the amount of the Subject Securities to be purchased by such ROFO Offeror plus, in accordance with Clause 13.6, in respect of each ROFO Offeror that has indicated an interest in purchasing additional Subject Securities in excess of its Proportionate Entitlement the amount of Excess Subject Securities to which such ROFO Offeror is entitled; and
13.5.3 the price per Subject Security payable by such ROFO Offeror (as set out in the relevant ROFO Offer Notice).
13.6 In the event that a ROFO AHG Shareholder does not respond to a ROFO Notice or a ROFO Offeror does not agree to subscribe for all of its Proportionate Entitlement of the Subject Securities on offer (eachsuch ROFO Offeror being a “Non-Fully Purchasing AHG Shareholder”) and the aggregate number of Subject Securities set out in all ROFO Offer Notices is less than the number of Subject Securities offered in the ROFO Notice (such excess Subject Securities being the “Excess Subject Securities”) then the ROFO Offerors that have indicated an interest in purchasing Subject Securities in excess of their Proportionate Entitlement pursuant to Clause 13.3.2 shall have the right pursuant to Clause 13.5.2 above, to purchase all or a portion of such Excess Subject Securities based upon their Proportionate Entitlement disregarding the Non-Fully Purchasing AHG Shareholders’ respective Proportionate Entitlements to acquire the Subject Securities, and the Company shall notify the relevant ROFO Offerors of the number of Subject Securities that have been allocated to them pursuant to their election pursuant to Clause 13.5.2.
13.7 Subject to Clauses 13.8 and 13.9 the offer of each ROFO Offeror (or combination of ROFO Offerors) contained in a ROFO Offer Notice or, if applicable, in an “RFO Offeree”Excess Securities Notice shall be irrevocable and such ROFO Offeror (or combination of ROFO Offerors) shall, subject to receipt of any Mandatory Regulatory Consents, be bound and obligated to purchase the number of Subject Securities set out in the ROFO Sale Notice or, if applicable, in an Excess Securities Notice issued to such ROFO Offeror (or combination of ROFO Offerors).
13.8 If:
13.8.1 no ROFO Offer Notices are received by the ROFO Sellers in accordance with Clause 13.3 before the ROFO Offer Period has expired, setting forth the ROFO Seller shall be entitled to agree to Transfer all (but not a portion only) of the Subject Securities to a Prospective Buyer; or
13.8.2 the aggregate number of Subject Securities set out in (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)all ROFO Sale Notices and, if applicable, (ii) all Excess Securities Notices is less than the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth number of Subject Securities offered in the RFO ROFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (such excess Subject Securities being the “Right of First OfferSaleable Securities”), such ROFO Seller shall be entitled to agree to Transfer any or all of the RFO Ordinary Shares by delivering Saleable Securities to a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO OffereeProspective Buyer, in the proportion each case of 13.8.1 and 13.8.2:
(as nearly as may bea) to the number of Ordinary Shares held by them inter se), within one hundred and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 twenty (ten120) Business Days of the expiry of the ROFO Offer Period, subject to any extensions to account for any Mandatory Regulatory Consents to be obtained (such re-offerone hundred and twenty (120)–Business Day period, after which as extended from time such re-offer shall lapse and to time, the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.“Permitted Sale Period”); and
(db) If at a price which is not less than ninety-seven and a half per cent. (97.5%) of the RFO Offeree(s) shall have delivered an RFO Exercise price included in the ROFO Notice and on terms substantially not less favourable to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon Prospective Buyer than the terms set forth out in the RFO ROFO Notice; provided.
13.9 If a Transfer of Subject Securities to which this Clause 13 applies is not completed within the Permitted Sale Period, howeverthe ROFO Notice and all ROFO Offer Notices, that such period ROFO Sale Notices and Excess Securities Notices (if any) issued with respect to the relevant proposed Transfer shall be extended following such date as necessary null and void, and the ROFO Sellers and ROFO AHG Shareholders shall be required to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection comply with such purchase the terms and conditions of this Clause 13 again should the ROFO Sellers wish to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such consummate a Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Subject Securities.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 3 contracts
Sources: Shareholders’ Agreement (Prudential Investment Portfolios, Inc. 15), Shareholder Agreement (Prudential Financial Inc), Shareholders’ Agreement (Squarepoint Ops LLC)
Right of First Offer. (a) Other than Prohibited TransfersCTO hereby agrees that, if at during the Restricted Period, neither CTO nor any time after of its Affiliates shall enter into any agreement with any third party for the Lock Up Period a Shareholder desires purchase and/or sale of any ROFO Property without first offering Alpine the right to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (purchase the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted TransfersROFO Property.
(b) The RFO Offeror shallIf, prior during the Restricted Period, CTO or any of its Affiliates proposes to the Transfer of any Ordinary Shares to which this Section 3.3 appliessell a ROFO Property, give CTO or such Affiliate shall deliver a written notice (“RFO Notice”which may be by email) to each other Shareholder Alpine (eachsuch notice, an a “RFO OffereeROFO Notice”), setting which ROFO Notice shall set forth the material business terms of such proposal including, without limitation, CTO’s or such Affiliate’s proposed sales price, the square footage of the ROFO Property, the terms of any lease associated with the ROFO Property, the proposed due diligence period, the proposed closing date, any deposit requirements and any other principal business terms. Alpine shall have the option to purchase the ROFO Property, which Alpine shall exercise by delivering irrevocable notice to CTO or its Affiliate, as applicable (i) the number of Ordinary Shares proposed to be disposed of (the an “RFO Ordinary SharesAcceptance Notice”), (ii) within ten Business Days of the proposed giving of the ROFO Notice, along with an agreement of sale to purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinROFO Property.
(c) The RFO Offeree(sWith respect to any ROFO Property for which a ROFO Notice has been delivered pursuant to Section 3(b) collectively shall have above, if Alpine declines or fails to exercise its right of first offer within the period provided in Section 3(b) above (such failure being deemed a waiver of any such right to purchase (the “Right of First Offer”first offer), any then CTO or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer its Affiliate, as applicable, shall thereafter be free to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter sell such ROFO Property upon the terms similar to those set forth in the RFO ROFO Notice; provided, however, that the sale of such period shall be extended following such date as necessary ROFO Property upon terms similar to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions those set forth in this Article III; providedthe ROFO Notice shall be completed by CTO or its Affiliate, howeveras applicable, that (i) such Transfer within 12 months of the RFO Ordinary Shares date the ROFO Notice is consummated on terms not more favorable delivered to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such saleAlpine; and provided further, that if CTO or its Affiliate, as applicable, subsequently offers for sale such ROFO Property on terms that are materially different from the Transfer Period terms set forth in the ROFO Notice relating to such ROFO Property, then CTO or such Affiliate shall provide Alpine with a revised ROFO Notice in accordance with the terms set forth above and Alpine shall have all of the same rights as set forth above. Time shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror essence as to obtain such approvals, consents Alpine’s giving of any Acceptance Notice. The terms upon which CTO or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Periodits Affiliate, as extended as provided hereinapplicable, is willing to sell any ROFO Property shall be deemed materially different if the RFO Offeror has not completed net effective sales proceeds shall be more than five percent (5.00%) less than the Transfer of net effective sales proceeds set forth in the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3initial or any revised ROFO Notice.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 3 contracts
Sources: Exclusivity and Right of First Offer Agreement (Alpine Income Property Trust, Inc.), Exclusivity and Right of First Offer Agreement (Consolidated Tomoka Land Co), Exclusivity and Right of First Offer Agreement (Alpine Income Property Trust, Inc.)
Right of First Offer. Tenant shall have the following right of first offer ("RIGHT OF FIRST OFFER") to lease additional space in or adjacent to the Center, PROVIDED, however, that such Right of First Offer shall not arise or be effective if Tenant is in default hereunder, beyond any applicable notice and cure periods, on the date Landlord would otherwise be required to notify Tenant of the commencement and terms of such Right of First Offer pursuant to this Section 1.3. Landlord has advised Tenant (a) Other that it is presently Landlord's intention to develop Building E of the Center, as shown on the Site Plan ("BUILDING E"), as an office building rather than Prohibited Transfersa biotechnology building, and (b) that the property lying easterly of the Property and commonly known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ("333 OYSTER POINT"), presently operated as a commercial warehouse facility, is presently owned by Landlord. In the event that either (x) Landlord decides, in its sole discretion, to develop Building E as a biotechnology building or (y) Landlord or any affiliate of Landlord to which ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ may be transferred, as applicable, decides to redevelop ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ as a biotechnology facility, then in either such event Tenant shall have a Right of First Offer to lease a minimum of 100,000 square feet of space in Building E (or the entirety of Building E, if less than 100,000 square feet) or the redeveloped ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ facility, as applicable, and neither Landlord nor its affiliate, if applicable, shall lease space in Building E or in the redeveloped ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ facility (excluding any leases which, individually and in the aggregate, leave at any time after least 100,000 square feet of space in the Lock Up Period a Shareholder desires applicable building or facility to Transfer other than be offered to Tenant pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”this Right of First Offer) fully complies without first complying with the terms of this Section 3.3; provided that the all applicable provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “1.3. Tenant's Right of First Offer”)Offer with respect to Building E or ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, any or all as applicable, shall commence upon Tenant's receipt of the RFO Ordinary Shares by delivering a written notice from Landlord (a "FIRST OFFER NOTICE") identifying the “RFO Exercise”) of exercise of building or facility to which the Right of First Offer applies, the amount of space available in such building or facility (not to be less than 100,000 square feet or the entirety of the applicable building or facility, if less than 100,000 square feet) and the rent, improvement allowance and other material terms upon which Landlord proposes to offer space in such building or facility. Tenant shall have ten (10) business days after receipt of a First Offer Notice in which to reach agreement on all terms and achieve execution of a written lease agreement with Landlord or its affiliate, as applicable, regarding Tenant's leasing and occupancy of at least 100,000 square feet of space in the building or facility covered by the First Offer Notice (or the entirety of such building or facility, if less than 100,000 square feet). It is generally the intention of the parties that the form of lease for any such leasing of space pursuant to a First Offer Notice would be substantially identical to this Lease, excluding this Section 1.3 and subject only to such other modifications as may be reasonably necessary to reflect differences in the particular space to be occupied pursuant to such new lease and/or in the economic terms applicable to Tenant's leasing of such space. If Landlord and Tenant fail to reach agreement on all terms and achieve execution of a written lease within ten (10) business days after Tenant's receipt of a First Offer Notice, then Tenant shall have no further rights under this Section 1.3 with respect to the RFO Offeror within 20 (twenty) Business Days building or facility covered by such First Offer Notice and Landlord shall thereafter be free to proceed with the leasing of such building or facility at any time and from the date of delivery of the RFO time to time without any further obligation to Tenant. If Tenant leases space in either Building E or ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to a First Offer Notice (the “RFO Response Period”)under this Section 1.3, irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree then Tenant shall have no further rights under this Section 1.3 with respect to either of such buildings or facilities (except Tenant's rights under the right, but shall not be required, written lease agreement entered into with respect to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held particular space covered by such RFO Offeree as a proportion First Offer Notice) and Landlord shall thereafter be free to proceed with the further leasing of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of both such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), building and such other RFO Offeree(s) may accept by delivery facility at any time and from time to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed without any further obligation to have been declinedTenant.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 3 contracts
Sources: Build to Suit Lease (Pharmacopeia Inc), Build to Suit Lease (Pharmacopeia Inc), Build to Suit Lease (Pharmacopeia Inc)
Right of First Offer. (a) Other than Prohibited Transfers, if at Before any time after Shares may be Transferred by the Lock Up Period a Shareholder desires to Transfer other than Investor pursuant to a Permitted Public Transfer (excluding any Permitted TransferTransfer pursuant to paragraph (d) of Exhibit C), such Transfer the Investor shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give deliver a written notice (a “RFO ROFO Notice”) to each other Shareholder the Company, which shall confirm the Investor’s bona fide intention to Transfer Shares (eachsuch shares, an the “RFO OffereeROFO Shares”), setting forth (i) the number of Ordinary Shares proposed in a Permitted Public Transfer. The Company may nominate one or more Preferred New Investors whom it elects to be disposed in deemed receipt of the ROFO Notice and shall give written notice of the identity of such Preferred New Investor(s) to the Investor within the period of ten (10) Business Days following the receipt of the ROFO Notice by the Company. During the period of fifteen (15) Business Days following the delivery of the ROFO Notice to the Company (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response ROFO Negotiation Period”), irrevocably stating therein such the Investor shall, if so requested by the Company or the Preferred New Investor(s), negotiate exclusively with the Preferred New Investor(s) in good faith with respect to a transaction in which the Investor shall Transfer all or a portion of the RFO Ordinary ROFO Shares as to the Preferred New Investor(s), in lieu of an effective Permitted Public Transfer for such ROFO Shares. For the avoidance of doubt, the Investor shall be purchasednot have any obligation to Transfer any ROFO Shares to the Preferred New Investor(s), collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof Preferred New Investor(s) shall not have any obligation to be purchased by each RFO Offeree (purchase any ROFO Shares from the Investor, unless the Preferred New Investor(s) and the Investor mutually agree to such a transaction in writing. If, following the expiration of the ROFO Negotiation Period, either the Company has not nominated any Preferred New Investors or such Affiliate(sthe Preferred New Investor(s) and the Investor have not agreed in writing for the Investor to Transfer all or a portion of the ROFO Shares to the Preferred New Investor(s)). Each RFO Offeree , then the Investor shall have the right, but shall not be required, to purchase during a period of six (or cause its wholly-owned Affiliate(s6) to purchase) such RFO Offeree’s pro rata share (based on months following the number of Ordinary Shares held by such RFO Offeree as a proportion end of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares ROFO Negotiation Period (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer ROFO Open Period”), subject to dispose the terms and conditions of this Agreement (including Section 4.4), to Transfer all of the RFO Ordinary ROFO Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article IIIa Permitted Public Transfer; provided, however, that (ix) such Transfer if the ROFO Shares are comprised of the RFO Ordinary Shares is consummated on terms not more favorable Registrable Shares, and (y) if the Investor demands, pursuant to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation Registration Rights, a registration of such sale; and provided furtherROFO Shares or the filing of a Prospectus Supplement (as defined in Exhibit C) with respect to such ROFO Shares during the ROFO Open Period, that then the Transfer ROFO Open Period shall be extended end six (6) months following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration effectiveness of the Transfer Period reasonably appropriate actions have been taken applicable Registration Statement or Prospectus Supplement filed by the RFO Offeror Company pursuant to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. as contemplated by Exhibit C. If at the Investor desires to Transfer any ROFO Shares following the end of the Transfer PeriodROFO Open Period in a Permitted Public Transfer, as extended as provided herein, then the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror Investor shall no longer be permitted required to dispose of such RFO Ordinary Shares without again fully complying comply with the provisions of procedures set forth under this Section 3.3.
(f4.6 again by delivering a new ROFO Notice to the Company and provide the Company with the right to nominate one or more Preferred New Investors and such Preferred New Investor(s) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required with another ROFO Negotiation Period pursuant to this Section 2.2 hereof, and such director shall execute a letter of resignation4.6.
Appears in 3 contracts
Sources: Investment and Strategic Cooperation Agreement (Henderson Group PLC), Investment and Strategic Cooperation Agreement (Henderson Group PLC), Investment and Strategic Cooperation Agreement (Janus Capital Group Inc)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires Subject to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall2.8, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively Tenant shall have the a one-time right to purchase of first offer (the “Right of First Offer”)) on the then-available portions of Floor 1 of Building A (each, any or all a “ROFO Space”) upon the following terms and conditions. This Right of First Offer is subject and subordinate to (i) the rights of third parties existing as of the RFO Ordinary Shares by delivering date of this Lease, (ii) the rights, if any, of each tenant in such ROFO Space granted in the Initial Lease-Up (as defined below) with respect to a written notice ROFO Space, and (iii) the right of Landlord or any affiliate of Landlord to use or occupy such ROFO Space. Landlord will notify Tenant of its plans to market a ROFO Space (the “RFO ExerciseROFO Notice”) of exercise of for lease to any party unrelated to Landlord (it being acknowledged and agreed that the Right of First Offer shall not be applicable to space Landlord intends to occupy and/or provide to affiliates of Landlord), which ROFO Notice shall specify the RFO Offeror within 20 (twenty) Business Days from location and square footage for such ROFO Space, Landlord’s estimate of the fair market rent for such ROFO Space, the date of delivery availability of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion ROFO Space and all other material terms and conditions which will apply to such ROFO Space. The term of the RFO Ordinary Shares as any ROFO Space shall be purchased, collectively, by coterminous with the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and Lease Term for the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO NoticePremises; provided, however, that in the event less than thirty (30) full calendar months remain in the Lease Term as of the date of availability of such period ROFO Space, then (i) if the Extension Term has not yet been exercised, Tenant’s exercise of such Right of First Offer shall be extended subject to Tenant’s simultaneous exercise of the Extension Term (which shall thereupon be applicable to such ROFO Space) and (ii) if no Extension Term remains or is exercisable by Tenant, then this Section 2.8 shall be of no force or effect and Tenant shall have no further Rights of First Offer. Within ten (10) Business Days following its receipt of any ROFO Notice, Tenant shall have the right to accept the same by written notice to Landlord (the “ROFO Acceptance Notice”), provided that if Tenant disputes Landlord’s estimate of the fair market rent in the ROFO Acceptance Notice, the fair market rent for such date space shall be determined as necessary set forth in Section 4.7 below. If Tenant timely delivers a ROFO Acceptance Notice, Landlord and Tenant shall execute an amendment to permit the Lease incorporating the ROFO Space into the Premises upon the terms contained in the ROFO Notice within ten (10) Business Days following Landlord’s delivery to Tenant of a form therefor (and if the Landlord’s determination of fair market rent was disputed in the ROFO Notice and not agreed to as of the commencement of the term for such ROFO Space, then rent shall be Landlord’s determination of fair market rent until the finalization of the fair market rent appraisal, and any change in such rent amount shall be adjusted — with applicable credits or reimbursement for any underpayment or overpayment - thereafter). If Tenant fails to timely deliver a ROFO Acceptance Notice within said ten (10) Business Day period or fails to execute Landlord’s form of amendment for such ROFO Space within ten (10) Business Days of receipt from Landlord, Tenant shall be deemed to have waived its rights with respect to a ROFO Space and Landlord shall be entitled, but not required, to lease all required approvalsor any portion of such ROFO Space to any party or parties on such terms and conditions, consents including, without limitation, options to extend the term of such lease and/or expand the premises under such lease, and for such rent as Landlord determines, all in its sole discretion, and the Right of First Offer with respect to such ROFO Space in such ROFO Notice shall be of no further force or authorizations from, or filings or registrations witheffect. Notwithstanding any contrary provision of this Lease, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, and any exercise by Tenant of any Right of First Offer shall be void and of no effect unless on the date Tenant timely delivers a ROFO Acceptance Notice to Landlord and on the commencement date of the amendment for a ROFO Space (as applicable): (i) this Lease is in full force and effect, (ii) no Event of Default has occurred under this Lease which remains continuing and uncured after any applicable notice and opportunity to cure and (iii) except with respect to a Permitted Transfer, Tenant shall not have assigned this Lease and there shall not be any sublease or subleases then in effect. Tenant acknowledges and agrees that Tenant’s Right of First Offer with respect to any space that is not subject to a third-party lease on the RFO Offeror shall have the right for sixty (60) days thereafter date hereof (the “Transfer PeriodVacant Space”), ) shall not be of any force or effect until such time as such Vacant Space has been initially leased to dispose a third-party tenant after the date hereof (the “Initial Lease-Up”) and such lease (and any rights held by such tenant in any part of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any Building consisting of the restrictions set forth in this Article III; provided, however, that (ia ROFO Space) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3subsequently expired.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 3 contracts
Sources: Lease Agreement (Morphic Holding, Inc.), Lease Agreement (Morphic Holding, Inc.), Lease Agreement (Morphic Holding, Inc.)
Right of First Offer. (a) Other than Prohibited Transfers, if at If any time after the Lock Up Period Stockholder or Stockholders acting in concert (a Shareholder desires “Transferor”) desire to Transfer (other than pursuant to any an Exempt Transfer) Company Securities that represent, in the aggregate, more than 5% of the then outstanding shares of Common Stock (assuming conversion in full of all outstanding Preferred Shares and NVC Shares, and irrespective of the Conversion Limitation), such Transferor shall give each Stockholder (other than the Transferor and its Permitted Transferees, as applicable) that, together with its Permitted Transferees, holds more than 5% of the then outstanding shares of Common Stock (for this purpose, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares and NVC Shares, held by such Person, and irrespective of the Conversion Limitation) and the Company (collectively, the “Option Holders”) prior written notice of such proposed Transfer, such Transfer which notice shall (i) specify the amount and type of Company Securities to be permitted only if such Shareholder Transferred (the “RFO OfferorSubject Securities”), the consideration to be received therefor, and the other material terms on which the Transferor proposes to Transfer the Subject Securities and (ii) contain the offer described below (collectively, the “Transferor’s Notice”). The Transferor’s Notice shall contain an offer to sell (the “Option”) fully complies the Subject Securities to the Option Holders in accordance with this Article 3 for the consideration and on the other terms of this Section 3.3specified in the Transferor’s Notice; provided that to the provisions extent such consideration shall consist of this Section 3.3 anything other than cash, each Option Holder shall be entitled, at its option, to instead pay in cash the value of such consideration as determined by mutual agreement of all such Option Holders so electing to pay cash and the Transferor, or if such agreement is not apply reached within 5 days of receipt of the Transferor’s Notice, as determined by an investment banker or appraiser of national reputation reasonably acceptable to Permitted Transfersboth the Transferor and such Option Holders (the fees and expenses of which shall be shared equally by the Transferor, on the one hand, and all such Option Holders requesting such valuation, on the other hand), in which case the date of the Transferor’s Notice shall be deemed the date the cash value of such consideration is so determined.
(b) The RFO Offeror shallCompany, prior to at the Transfer election of any Ordinary Shares to which the Board (acting by majority vote, excluding, for purposes of this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) if the Transferor is an Investor (or Permitted Transferee thereof), any Investor Designee designated to the Board by such Investor pursuant to Article 2 hereof (and if such Transferor is WCAS (or Permitted Transferee thereof), also excluding ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ if he is then an Investor Designee of WCAS), and (ii) if the Transferor is ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of his Permitted Transferees or Affiliates, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is then a director of the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇), shall have the first right and option, exercisable at any time within the first 10 days following the date of the Transferor’s Notice, to exercise the Option to purchase from the Transferor the Subject Securities pursuant to the Option. If the Option is not exercised by the Company within the first 10 days after the date of the Transferor’s Notice, then the other Option Holders shall have the right and option, exercisable at any time within the first 20 days following the date of the Transferor’s Notice, to exercise the Option and purchase from the Transferor the Subject Securities pursuant to the Option, in which event, such other Option Holders may elect to purchase the Subject Securities in the proportions upon which they mutually agree or, if they are unable to agree upon an allocation of such Subject Securities among themselves, then in the proportion that the number of Ordinary shares of Common Stock held by each such Option Holder which desires to participate in the purchase of such Company Securities pursuant to the Option bears to the aggregate number of shares of Common Stock held by all such Option Holders that desire to participate in the purchase of such Company Securities pursuant to the Option. For purposes of the foregoing sentence, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares proposed to be disposed of (the “RFO Ordinary and NVC Shares”), (ii) the proposed purchase price per RFO Ordinary Shareheld by such Person, and payment and other material terms and conditions and (iii) irrespective of the Conversion Limitation. Acceptance of the Option by an irrevocable offer to sell Option Holder shall be in a writing delivered to the RFO Offeree(s) Transferor and the RFO Ordinary Shares set forth in Company, which shall deliver copies thereof to the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinother Option Holders.
(c) The RFO Offeree(s) collectively shall have If the right to purchase (the “Right of First Offer”), any or Option is accepted in a manner such that all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, Company Securities covered by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof Transferor’s Notice are to be purchased by each RFO Offeree the Option Holders, the Transferor shall, subject to Section 3.03, Transfer such Company Securities free of all liens and encumbrances (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held other than restrictions imposed by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may bethis Agreement) to the number respective Option Holder purchasers thereof against delivery by the Option Holder purchaser of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery the applicable consideration payable to the RFO Offeror of an RFO Exercise in respect Transferor therefor. Unless, through exercise of the relevant Remaining RFO Ordinary Shares within 10 Option, all the Company Securities proposed to be transferred in the Transferor’s Notice are to be acquired by one or more Option Holders, the Transferor may, subject to Section 3.03, either (teni) Business Days of such re-offer, after which time such re-offer shall lapse and Transfer the re-offer Company Securities subscribed for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If by the RFO Offeree(s) shall have delivered an RFO Exercise Option Holders at the applicable purchase price therefor to the RFO Offeror within Option Holders or (ii) Transfer the RFO Response Period for all Subject Securities that were subject to the RFO Ordinary Shares, Option to a third party Transferee at the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and same purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms price set forth in the RFO Transferor’s Notice (or at a higher price) and on terms and conditions no less favorable to the Transferor than the terms and conditions set forth in the Transferor’s Notice; provided, however, that such period Transfer shall be extended following such occur no later than 90 days after the date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain Transferor’s Notice. If such approvals, consents or authorizations, or make Transfer does not occur within such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer90 day period, then the RFO Offeror Company Securities shall have be re-offered to the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject Option Holders under this Section 3.02 prior to any of the restrictions set forth in subsequent Transfer otherwise covered by this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Section 3.02. The transactions contemplated by this Section 3.02 shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority consummated in connection accordance with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.33.03.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 3 contracts
Sources: Stockholders' Agreement (Universal American Financial Corp), Stockholders Agreement (Welsh Carson Anderson & Stowe Ix Lp), Stockholders' Agreement (Universal American Financial Corp)
Right of First Offer. (a) Other than Prohibited TransfersIf, if at any time after prior to the Lock Up Period a Shareholder desires consummation of an IPO, any Rollover Member (the “ROFO Seller”) proposes to Transfer other than Common Units pursuant to any Permitted TransferSection 10.02(b)(ii) or pursuant to Section 10.01(a) with unanimous Board approval, such Transfer shall be permitted only if such Shareholder subject to the following provisions:
(a) The ROFO Seller shall deliver an irrevocable written notice (the “RFO OfferorROFO Notice”) fully complies with to the terms Company and the other Common Members and the Specified Profits Members (the “ROFO Rightholders”) offering such Membership Interests first to the Company and then to such ROFO Rightholders, and specifying in reasonable detail the number of this Section 3.3; provided that Membership Interests proposed to be Transferred (the provisions “ROFO Interests”), the proposed purchase price therefor (the “ROFO Purchase Price”), and, if the January Capital Member is the ROFO Seller, whether or not such sale will include a sale of this Section 3.3 shall not apply to Permitted TransfersEquity Securities in the January Capital Member (the “ROFO Purchase Terms”).
(b) The RFO Offeror shallFor a period of fifteen (15) days after the ROFO Notice has been delivered to the Company (the “ROFO Option Period”), the Company shall have the right to elect to purchase all or any portion of the ROFO Interests for cash by delivering a written notice to the ROFO Seller prior to the Transfer expiration of any Ordinary Shares the ROFO Option Period, specifying the Company’s acceptance of the ROFO Purchase Terms (including, for the avoidance of doubt, the ROFO Purchase Price).
(c) If, during the ROFO Option Period, the Company elects to which purchase less than all of the ROFO Interests included by the ROFO Seller in such ROFO Notice (or if the Company shall have delivered written confirmation to the ROFO Seller that it has irrevocably waived its rights under this Section 3.3 applies10.06 with respect to such transaction), give then, for a period of fifteen (15) days after the termination of the ROFO Option Period or the delivery of such written confirmation (the “ROFO Member Option Period”), each of the other ROFO Rightholders shall have the right to elect to purchase up to that number of the remaining ROFO Interests equal to the product of (i) the Percentage Interest of such ROFO Rightholder, and (ii) the number of ROFO Interests to be Transferred by such ROFO Seller (the “ROFO Pro Rata Portion”) (or such greater portion, as described in the last sentence of this clause (c)) for cash by delivering a written notice (a “RFO ROFO Member Exercise Notice”) to the ROFO Seller prior to the expiration of the ROFO Member Option Period, specifying the Member’s acceptance of the ROFO Purchase Terms (including, for the avoidance of doubt, the ROFO Purchase Price). If the applicable ROFO Rightholders do not, in the aggregate, elect to purchase all of the remaining ROFO Interests based on their respective ROFO Pro Rata Portions, each applicable ROFO Rightholder electing pursuant to purchase its entire ROFO Pro Rata Portion of remaining ROFO Interests shall have the right to purchase all or any of the remaining ROFO Interests not elected to be purchased by the other Shareholder applicable ROFO Rightholders.
(eachd) If, an during the ROFO Member Option Period, ROFO Member Exercise Notices are delivered with respect to less than all of the ROFO Interests, then, notwithstanding the foregoing or anything to the contrary herein, the ROFO Rightholders shall automatically be deemed to forfeit their right to purchase the ROFO Interests and the ROFO Seller may thereupon, in its discretion, elect to Transfer to a third party all of the ROFO Interests or solely the remaining ROFO Interests (if the ROFO Seller determines to accept a partial exercise by the ROFO Rightholders pursuant to this Section 7.06) within one hundred twenty (120) days, or (as long as a definitive purchase agreement providing for such sale is entered into within such 120 days) such longer period as may be necessary to obtain approval for such transfer under applicable antitrust law (the “RFO OffereePost-ROFO Period”) of the expiration of the ROFO Member Option Period; provided that neither (x) the purchase price nor (y) the terms and conditions, taken as a whole, of such sale as agreed to with the Transferee is more favorable to such Transferee than the ROFO Purchase Terms; provided, further that any such sale shall again be subject to this Section 10.06 if not consummated prior to the end of such Post-ROFO Period.
(e) The closing of the sale by the ROFO Seller of any ROFO Interests to the Company and/or any ROFO Rightholder, as applicable, if any such parties duly exercise (and are not deemed to have forfeited) such rights under this Section 10.06 (a “ROFO Sale”), setting forth shall be held within thirty (30) days (or such later date as may be necessary to satisfy any applicable law) after the expiration of the later of the ROFO Option Period or the ROFO Member Option Period, as the case may be, or such other time as the Company or the ROFO Rightholders and the ROFO Seller, as applicable, shall mutually agree. At such closing the ROFO Seller shall deliver its ROFO Interests being purchased under this Section 10.06, duly endorsed, or accompanied by written instruments of transfer in form reasonably satisfactory to the proposed purchaser and duly executed by the ROFO Seller, and such ROFO Interests shall be free and clear of any liens (other than limitations on transfer pursuant to applicable securities laws) and the ROFO Seller shall so represent and warrant, and further represent and warrant that it is the sole record owner of such ROFO Interests.
(f) Notwithstanding anything to the contrary herein, (i) any Transfer by the number ROFO Seller as to which the right of Ordinary Shares proposed first offer would apply under this Section 10.06 shall be subject to be disposed of Section 7.01(b) and (the “RFO Ordinary Shares”c), (ii) the proposed purchase price per RFO Ordinary ShareCompany and the Members shall be deemed to have waived their rights of first offer hereunder if they fail to give notice within the time period prescribed in Section 10.06(c) and Section 10.06(d), and payment and other material terms and conditions respectively, and (iii) an irrevocable the rights of first offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but herein shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject apply to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof10.02(a), and such director shall execute a letter of resignationSection 10.02(d), Section 10.02(e), Section 10.04, Section 10.05, Section 10.07, Section 10.08, or Section 10.09.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (Endeavor Group Holdings, Inc.), Limited Liability Company Agreement (Endeavor Group Holdings, Inc.), Limited Liability Company Agreement (Endeavor Group Holdings, Inc.)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires Subject to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms and conditions of this Section 3.3; 4.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Investor, provided that the provisions Board of Directors has not reasonably determined that such Investor is a Competitor of the Company. An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate, provided that each such Affiliate (x) is not a Competitor of the Company as reasonably determined by the Board of Directors, and (y) agrees to enter into this Section 3.3 shall not apply to Permitted TransfersAgreement and the Stockholders Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement.
(b) The RFO Offeror shallNotwithstanding anything to the contrary herein, for so long as TRV is deemed an Investor, TRV shall have the right to apportion its right of first offer of New Securities pursuant to Section 4.1(a) among itself, its Affiliates, and such unaffiliated third parties as TRV reasonably deems appropriate (each such Affiliate or unaffiliated third party, a “Permitted TRV Transferee”), provided that each such Permitted TRV Transferee (x) is not a Competitor of the Company as reasonably determined by the Board of Directors, and (y) agrees to enter into or join this Agreement and any other stockholder agreement with the Company that TRV is party to or would become a party to if it exercised its right of first offer, as an “Investor” under each such agreement. TRV shall provide the Company with advanced written notice of any such apportionment of rights to a Permitted TRV Transferee prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares deadline set forth in Section 4.1(d) by which TRV is required to notify the RFO Notice at Company of TRV’s or its Permitted TRV Transferees’, as applicable, intention to exercise its right of first offer with respect to a given issuance of New Securities, and TRV and the same price per Ordinary Share and on Permitted TRV Transferee shall provide the same terms and conditions Company with such other information as set forth thereinthe Company reasonably requests in connection with such apportionment of rights to such Permitted TRV Transferee.
(c) The RFO Offeree(s) collectively Company shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written give notice (the “RFO ExerciseOffer Notice”) of exercise of the Right of First Offer to the RFO Offeror within 20 each Investor, stating (twentyi) Business Days from the date of delivery of the RFO Notice its bona fide intention to offer such New Securities, (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(sii) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish New Securities to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)offered, and (iii) the price and terms, if any, upon which it proposes to offer such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedNew Securities.
(d) By notification to the Company within twenty (20) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Investor (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held by such Investor) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). At the expiration of such twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which such Investors were entitled to subscribe, but that were not subscribed for by the Investors, which is equal to the proportion that the Common Stock issued and held, or issuable upon conversion of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4.1(b) shall occur within the later of one hundred twenty (120) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 4.1(c).
(e) If fewer than all New Securities referred to in the Offer Notice are elected to be purchased or acquired as provided in Section 4.1(d), the Company may, during the ninety (90) day period following the expiration of the periods provided in Section 4.1(d), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the RFO Offeree(s) shall have delivered Company does not enter into an RFO Exercise to the RFO Offeror within the RFO Response Period agreement for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares New Securities within such period, or if such agreement is not consummated within thirty (30) days thereafter upon of the terms set forth execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 4.1.
(f) The right of first offer in this Section 4.1 shall not be applicable to Exempted Securities (as defined in the RFO NoticeCertificate of Incorporation), and (ii) shares of Common Stock issued in the IPO.
(g) The rights of the Investors to purchase New Securities under this Section 4.1 may be modified or waived in accordance with Section 6.6; provided, however, that in the event such period rights to purchase New Securities under this Section 4.1 are waived and any Investor(s) purchase New Securities, the Company shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, give notice to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares other Investors within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) daysdays after the initial issuance of New Securities. If at Such notice shall describe the end type, price, and terms of the Transfer PeriodNew Securities. Each such other Investor shall have twenty (20) days from the date such notice is given to elect to purchase on similar terms and conditions in a subsequent closing up to the number of New Securities that would, if purchased by such Investor, maintain such Investor’s percentage-ownership position, calculated as extended as provided herein, set forth in Section 4.1(d) before giving effect to the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose issuance of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3New Securities.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Maze Therapeutics, Inc.), Investors’ Rights Agreement (Maze Therapeutics, Inc.)
Right of First Offer. (ai) Other than Prohibited TransfersDuring any period between the expiration of the Restricted Period and the consummation of a Qualified Public Offering, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Holder (the “RFO OfferorTransferring Holder”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply wishes to Permitted Transfers.
(b) The RFO Offeror shall, prior to the effect a Transfer of any Ordinary Shares to which this Section 3.3 appliesits Common Shares, give then such Transferring Holder shall first deliver a written notice (the “RFO ROFO Notice”) to each other Shareholder all Holders whose Proportionate Percentage is at least 5% (each, an the “RFO OffereeROFO Offerees”), setting forth (i) . Such ROFO Notice shall disclose the number of Ordinary Common Shares proposed to be disposed of Transferred (the “RFO Ordinary Offered Shares”)) and the material terms of any offer the Transferring Holder has received or is contemplating, if applicable.
(ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively Each ROFO Offeree shall have the right to purchase (the “Right of First Offer”)) to provide the Transferring Holder, any or within 45 days of the date of the ROFO Notice, an irrevocable written offer to acquire all of the RFO Ordinary Offered Shares, upon the price, terms and conditions on which such ROFO Offeree is willing to purchase the Offered Shares by delivering a written notice (the “RFO ExerciseProposed Offer”).
(iii) The Transferring Holder, in its sole discretion, may elect to accept any Proposed Offer by delivering an irrevocable written notice of acceptance (the “ROFO Acceptance Notice”) of exercise of the Right of First Offer to the RFO Offeror ROFO Offerees and the Company within 20 (twenty) Business Days from 60 days after the date of delivery of the RFO ROFO Notice (the “RFO Response ROFO Acceptance Period”), irrevocably stating therein ; provided that (A) if such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as Transferring Holder receives a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is Proposed Offer from more than one other RFO ROFO Offeree, such Transferring Holder may only accept the Proposed Offer with the most favorable terms and conditions (including price) in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)its reasonable discretion, and (B) if such Transferring Holder (x) receives Proposed Offers with equivalent terms (including price, conditions and other RFO Offeree(sterms and conditions) may from more than one ROFO Offeree and (y) elects to accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days one of such re-offerProposed Offers, after which time such re-offer Transferring Holder shall lapse accept all such Proposed Offers with equivalent terms and the re-offer for Offered Shares shall be allocated pro rata among such Remaining RFO Ordinary Shares will be deemed to have been declinedROFO Offerees based on their respective ROFO Proportionate Percentages.
(div) If The ROFO Offerees purchasing the RFO Offeree(s) shall have delivered an RFO Exercise Common Shares pursuant to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(sthis Section 4(c) shall be respectively boundentitled to require the Transferring Holder to provide representations and warranties regarding (A) its power, authority and shall complete legal capacity to enter into such Transfer of Common Shares; (B) valid right, title and interest in such Common Shares and the sale Transferring Holder’s ownership of such Common Shares; (C) the absence of any Encumbrances on such Common Shares; and purchase (D) the absence of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; providedany violation, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations fromdefault, or filings acceleration of any agreement or registrations with, any Governmental Authority in connection with instrument pursuant to which such purchase to be obtained Transferring Holder or made, to the extent prior to assets of such Transferring Holder are bound as the expiration result of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 dayssale.
(ev) If Subject to any Tag-Along Rights, after the RFO Offeree(s) shall not have completed the purchase of all termination of the RFO Ordinary Shares within the RFO Purchase ROFO Acceptance Period, as extended as provided the Transferring Holder may, during the 120 day period following the ROFO Acceptance Period, Transfer (or enter into an agreement to Transfer and at any time Transfer in Section 3.3(d), or together have failed to deliver RFO Exercises within accordance with such agreement) the RFO Response Period for all of Offered Shares at and upon the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, price and other material terms and conditions that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not are more favorable to the purchasers thereof Transferring Holder than the terms specified most favorable Proposed Offer that the Transferring Holder received (such Transfer, the “Permitted ROFO Transfer”). If the Transferring Holder has not consummated a Permitted ROFO Transfer (or has not entered into an agreement with respect thereto) within such 120 period, the Transferring Holder shall not thereafter Transfer any Common Shares (including such Offered Shares), whether pursuant to a Proposed Offer or otherwise, without first providing a new ROFO Notice to the ROFO Offerees in the RFO Notice manner provided above, and (ii) the RFO Offeror provides written confirmation such proposed Transfer shall again be subject to the RFO Offeree(srequirements of this Section 4(c).
(vi) that Upon the closing of the sale of any Common Shares pursuant to this Section 4(c), the Transferring Holder shall deliver at such terms comply closing, against payment of the purchase price therefor, certificates representing those Common Shares to be sold, duly endorsed for transfer or accompanied by duly endorsed stock powers, and evidence of the absence of Encumbrances and adverse claims with clause respect thereto and of such other matters as are deemed necessary by the Company for the proper Transfer of such Common Shares on the books of the Company.
(ivii) hereof prior Notwithstanding anything to the consummation contrary in this Agreement, this Section 4(c) shall not apply to (A) Permitted Transfers, (B) Transfers of such sale; and provided furtherCommon Shares made in a Qualified Public Offering, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from(C) Transfers of Common Shares made by Dragged Holders in a Drag-Along Transaction, or filings or registrations with, any Governmental Authority (D) Transfers of Common Shares made in connection with such Transfers to be obtained or made, to the extent prior to the expiration exercise of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Tag-Along Rights.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Stockholder Agreement (Popular Inc), Stockholder Agreement (Popular Inc)
Right of First Offer. (a) Other than Prohibited TransfersEach of the following spaces in the Building (known as Suites 30, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer20, such Transfer shall be permitted only if such Shareholder (the 18, 8, 4 and 2), as more particularly shown on Exhibit “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder B” attached hereto (each, an “RFO OffereeSpace” and collectively, the “RFO Spaces”), setting forth is on the date of this Amendment leased to other tenants (i) the number of Ordinary Shares proposed to be disposed of (each, a “Current Tenant” and collectively, the “RFO Ordinary SharesCurrent Tenants”). If, at the termination of any lease to any Current Tenant (ii) including option terms and any additional terms that may be negotiated between Landlord and the proposed purchase price per applicable Current Tenant), Landlord intends to lease the applicable RFO Ordinary ShareSpace, and payment and other provided that Landlord has not given Tenant notice of a material terms and conditions and non-monetary Event of Default or any monetary Event of Default more than two (iii2) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth times in the RFO Notice at preceding 12-month period, that there then exists no Event of Default by Tenant under the same price per Ordinary Share Lease nor any event that with the giving of notice and/or the passage of time would constitute an Event of Default, and on that Tenant and Tenant’s Affiliates occupy all of the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively Original Premises, Tenant shall have the one time right of first offer (“RFO Option”) with respect to purchase each RFO Space to lease all (but not less than all) of the “Right applicable RFO Space for a term of First Offer”)not less than three (3) years (subject to subsection (d) below) and coterminous with the Term of this Lease, in the following manner:
(b) Landlord shall notify Tenant when the applicable RFO Space first becomes available for lease by any or all party other than the applicable Current Tenant and Landlord intends to offer the RFO Space to lease, advising Tenant in writing of Landlord’s determination of market rental rate and other terms to be applicable to the lease of the RFO Ordinary Shares by delivering Space (which shall be market terms), for a written notice term coterminous with the Term of this Lease (“Landlord’s Notice of RFO Terms”). Subject to the “RFO Exercise”) of exercise terms of the Right Current Tenant’s lease, upon receipt of First Offer Landlord’s Notice of RFO Terms, Tenant may upon written request to Landlord and provided that Landlord accompanies Tenant, view the RFO Offeror within 20 Space. Within twenty (twenty20) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offereebusiness days following Landlord’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror Tenant of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.Landlord’s
Appears in 2 contracts
Sources: Lease Agreement (TELA Bio, Inc.), Lease Agreement (TELA Bio, Inc.)
Right of First Offer. (a) Other than Prohibited Transfers, if at Prior to making any time after the Lock Up Period a Shareholder desires to Transfer (other than pursuant to any a Permitted Transfer, such Transfer shall be permitted only if such Shareholder ) of Shares (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO OffereeSubject Shares”), a Non-voting Stockholder (an “Offering Stockholder”) shall deliver to Station and each other Non-voting Stockholder owning more than ten percent (10%) of the total outstanding number of Shares of Station at the time of such Transfer (the “Share Offerees”) a letter (the “Share Offer Letter”) signed by such Offering Stockholder setting forth forth:
(i) the number prospective purchase price per Share in cash for the Subject Shares;
(ii) such Offering Stockholder’s offer, irrevocable by its terms for thirty (30) Business Days following the delivery of Ordinary Shares proposed to be disposed of the Share Offer Letter (such period, the “RFO Ordinary SharesShare Offer Period”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) Share Offerees, all but not less than all the RFO Ordinary Shares Subject Shares, for a purchase price per Share equal to the purchase price per Share in cash set forth in such Share Offer Letter (the RFO Notice at the same price per Ordinary “Share and on the same terms and conditions as set forth therein.Offer”); and
(ciii) The RFO Offeree(sclosing arrangements and, to the extent such date is determinable, a closing date (which shall be subject to the attainment of approvals from the applicable Gaming Authorities) collectively for any purchase and sale that may be effected by the Share Offerees pursuant to this Section 3.4.1. During the Share Offer Period, the Share Offerees shall have the right to enter into definitive agreements to purchase (all but not less than all the “Right of First Subject Shares for the same price per Share set forth in the Share Offer”), any or all of . If more than one Share Offeree elects to purchase the RFO Ordinary Subject Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof aggregate number of Subject Shares elected to be purchased by each RFO Offeree (or all Share Offerees exceeds the actual number of Subject Shares, the Subject Shares shall be allocated among such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s Share Offerees pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) according to the number of Ordinary non-voting Shares held of Station owned by them inter se), and each such other RFO Offeree(s) may accept by delivery Share Offeree relative to the RFO Offeror aggregate number of an RFO Exercise in respect non-voting Shares of Station owned by all such Share Offerees, up to the number of Subject Shares elected to be purchased by such Share Offeree. If, upon the expiration of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days Share Offer Period, the Share Offerees elect to not exercise the right of such re-offer, after which time such re-first offer shall lapse and with respect to all of the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Subject Shares, the RFO Offeror and RFO Offeree(sOffering Stockholder may sell all, but not less than all, of such Subject Shares to a third party for not less than ninety-five percent (95%) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth purchase price per Share contained in the RFO Noticesuch Share Offer; provided, however, that any such period shall be extended following third party must execute a joinder agreement to this agreement in a form reasonably satisfactory to a Supermajority of the Board of Directors pursuant to which such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase third party agrees to be obtained a “Station Stockholder” for all purposes hereunder. Prior to consummating any such sale, the Offering Stockholder shall, upon request from the Share Offerees or madeStation, provide the requesting party with reasonable supporting documentation with respect to the extent prior price per Share of any such sale so as to demonstrate such Offering Stockholder’s compliance with the expiration provisions of the RFO Purchase Period reasonably appropriate actions have been taken by preceding sentence. Station shall provide such third party reasonable access to its books and records during reasonable business hours and upon reasonable advance notice at the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; sole cost and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all expense of the RFO Ordinary Shares inspecting third party. If such sale has not been completed within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all two hundred seventy (270) calendar days of the RFO Ordinary closing date proposed in the Share Offer Letter, the Subject Shares as contemplated in Section 3.3(d) or declined in writing to exercise covered by such Share Offer may not thereafter be sold by such Offering Stockholder unless the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions procedures set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Section 3.4.1 shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations have again been complied with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Equityholders Agreement (Fertitta Frank J Iii), Equityholders Agreement (Station Casinos Inc)
Right of First Offer. Notwithstanding any provision of this ECR to the contrary, the following circumstances shall not be deemed a Transfer under this ECR and shall not be subject to Wal-Mart’s right of first refusal:
(a) Other Any sale, conveyance, transfer or other assignment of Tract 2 in connection with ▇▇▇▇▇▇’▇ direct or indirect sale, conveyance, transfer and/or assignment to one or more third parties (whether affiliated or unaffiliated with ▇▇▇▇▇▇) of all or substantially all of its gas station parcels located adjacent to a Wal-Mart store and previously leased from Wal-Mart or purchased from Wal-Mart, or Wal-Mart’s affiliates (“Adjacent Sites”) (any such sale, conveyance transfer and/or assignment hereafter referred to as a “Permitted Transfer”); and/or
(b) ▇▇▇▇▇▇ mortgages, pledges, or otherwise encumbers all or any portion of its interest in Tract 2 in connection with any bona fide secured financing. Provided, any sale or other disposition as the result of a foreclosure sale by the secured lender or its assignee(s) in connection with the secured financing shall, upon the consummation of the transfer of title from ▇▇▇▇▇▇ to a transferee following the foreclosure sale, terminate Wal-Mart’s right of first refusal and right of first offer with respect to Tract 2, provided Wal-Mart is provided written notice of such foreclosure sale no less than Prohibited Transfersthirty (30) days prior to such date of foreclosure sale. Additionally, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant Wal-Mart’s right of first refusal or right of first offer shall not apply to any deed in lieu of foreclosure to the secured lender or its assignee(s), provided such right of first refusal and right of first offer shall apply to the immediately subsequent sale or transfer following such deed in lieu of foreclosure transfer, and none other, by such secured lender or its assignee. The occurrence of (i) ▇▇▇▇▇▇’▇ authorization of a plan to market all or substantially all of the Adjacent Sites for a Permitted Transfer, or (ii) ▇▇▇▇▇▇’▇ receipt of an unsolicited, bona fide formal written offer from any unaffiliated third party offering to enter into a Permitted Transfer (a “Third Party Offer”), with ▇▇▇▇▇▇ which ▇▇▇▇▇▇ intends to accept, shall each be referred to as a “ROFO Event”. Upon the occurrence of a ROFO Event, ▇▇▇▇▇▇ shall give Wal-Mart written notice of the ROFO Event and provide Wal-Mart with a copy of any marketing or offering materials made available to third parties, and such Transfer financial information in ▇▇▇▇▇▇’▇ possession relating to the value of the Adjacent Sites or ROFO Event as reasonably requested by Wal-Mart in writing to enable Wal-Mart to estimate the value of the ROFO Event; provided that, for the avoidance of doubt, ▇▇▇▇▇▇ shall not be permitted only if such Shareholder (the “RFO Offeror”) fully complies required to provide Wal-Mart with the terms of the Third Party Offer or any information received from a third party in connection with a Third Party Offer. Wal-Mart shall hold all information provided pursuant to this Section 3.3; provided that 10.02 in confidence in accordance with Section 10.03 herein. ▇▇▇▇▇▇ agrees not to enter into a legally binding definitive agreement for the provisions ROFO Event for a period of this Section 3.3 shall not apply to Permitted Transfers.
ninety (b90) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give days after delivering written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) Wal-Mart regarding the number of Ordinary Shares proposed to be disposed of occurrence thereof (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Waiting Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly. Wal-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree Mart shall have the right, but shall not be required, the obligation to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on present ▇▇▇▇▇▇ with a formal written offer for the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares ROFO Event (the “Remaining RFO Ordinary SharesWal-Mart Offer”) during the Waiting Period. If submitted, the Wal-Mart Offer shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(sremain in effect for a period of one (1) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect year after expiration of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such reWaiting Period, unless revoked in writing by Wal-offer, after which time such reMart prior to ▇▇▇▇▇▇’▇ acceptance thereof. In the event Wal-offer shall lapse and the reMart fails to submit a Wal-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent Mart Offer prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Waiting Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror ▇▇▇▇▇▇ shall have the right to accept an offer for sixty a ROFO Event from any third party (60) days thereafter (the each an “Transfer PeriodOutside Offer”), to dispose of . In the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent event Wal-Mart submits a Wal-Mart Offer prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Waiting Period, as extended as provided hereinthen for a period of one (1) year thereafter, the RFO Offeror has ▇▇▇▇▇▇ shall not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose accept an Outside Offer unless (i) the consummation of such RFO Ordinary Shares without again fully complying Outside Offer will result in ▇▇▇▇▇▇’▇ receipt of net consideration greater than the Wal-Mart Offer (provided ▇▇▇▇▇▇ shall not be required to accept the Wal-Mart Offer in the event such acceptance would result in a breach of the fiduciary duties of ▇▇▇▇▇▇’▇ board of directors, as reasonably determined by ▇▇▇▇▇▇), or (ii) Wal-Mart withdraws the Wal-Mart Offer. ▇▇▇▇▇▇ shall give Wal-Mart written notice of its acceptance of the Wal-Mart Offer, or rejection of the Wal-Mart Offer in the event ▇▇▇▇▇▇ accepts an Outside Offer as permitted herein, within three (3) days after acceptance or rejection, as the case may be. ▇▇▇▇▇▇’▇ failure to accept an Outside Offer within one (1) year after the expiration of the Waiting Period shall reinstate the Waiting Period for an additional ninety (90) days and the cycle of one (1) year free-marketing periods, followed by the reinstatement of a ninety (90) day Waiting Period shall continue until ▇▇▇▇▇▇ consummates a Permitted Transfer or ▇▇▇▇▇▇ rescinds authorization for the Permitted Transfer. In addition, ▇▇▇▇▇▇’▇ failure to consummate an Outside Offer within one hundred eighty (180) days after acceptance of an Outside Offer shall reinstate Wal-Mart’s right to submit a Wal-Mart Offer with respect to any pending or future Permitted Transfer in accordance with the provisions requirements of this Section 3.3.
section. If ▇▇▇▇▇▇ accepts the Wal-Mart Offer, the parties shall consummate the Permitted Transfer substantially in accordance with the terms of the Wal-Mart Offer within sixty (f60) The RFO Offeror shalldays after ▇▇▇▇▇▇’▇ acceptance thereof. Notwithstanding any contrary provision of this Agreement, Wal-Mart’s option rights with respect to a Permitted Transfer shall be limited to only those rights set forth in this section. No ROFO Event shall be deemed to have occurred upon the granting of any mortgage or other security interest in Tract 2 in connection with any secured financing described in and subject to clause (b) above. No ROFO Event shall be deemed to have occurred as a result of a direct or indirect internal assignment or transfer of Tract 2 (including a leasehold interest in Tract 2) and/or equity interests in ▇▇▇▇▇▇ to any current or future parent company of ▇▇▇▇▇▇ or Affiliate, or any combination thereof (“In House Transfer”). Notwithstanding any provision of this Agreement to the contrary, any Permitted Transfer involving (i) a (A) reorganization or consolidation of, or merger with, of or into, ▇▇▇▇▇▇ (or any current or future parent company or other entity which controls or ultimately controls ▇▇▇▇▇▇), or (B) transfer of any of the RFO Ordinary Sharessecurities of, procure the resignation of such number of directors nominated by itor change in control of, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.(1) ▇▇▇▇▇▇ Oil Corporation (or any current or future parent company or other entity which controls or ultimately controls ▇▇▇▇▇▇ Oil Corporation) or (2) following
Appears in 2 contracts
Sources: Agreement of Sale, Agreement of Sale (Murphy USA Inc.)
Right of First Offer. (a) Other than Prohibited Transfers, if at If any time after the Lock Up Period Stockholder or Stockholders acting in concert (a Shareholder desires “Transferor”) desire to Transfer (other than pursuant to any an Exempt Transfer) Company Securities that represent, in the aggregate, more than 5% of the then outstanding shares of Common Stock (assuming conversion in full of all outstanding Preferred Shares and NVC Shares, and irrespective of the Conversion Limitation), such Transferor shall give each Stockholder (other than the Transferor and its Permitted Transferees, as applicable) that, together with its Permitted Transferees, holds more than 5% of the then outstanding shares of Common Stock (for this purpose, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares and NVC Shares, held by such Person, and irrespective of the Conversion Limitation) and the Company (collectively, the “Option Holders”) prior written notice of such proposed Transfer, such Transfer which notice shall (i) specify the amount and type of Company Securities to be permitted only if such Shareholder Transferred (the “RFO OfferorSubject Securities”), the consideration to be received therefor, and the other material terms on which the Transferor proposes to Transfer the Subject Securities and (ii) contain the offer described below (collectively, the “Transferor’s Notice”). The Transferor’s Notice shall contain an offer to sell (the “Option”) fully complies the Subject Securities to the Option Holders in accordance with this Article 3 for the consideration and on the other terms of this Section 3.3specified in the Transferor’s Notice; provided that to the provisions extent such consideration shall consist of this Section 3.3 anything other than cash, each Option Holder shall be entitled, at its option, to instead pay in cash the value of such consideration as determined by mutual agreement of all such Option Holders so electing to pay cash and the Transferor, or if such agreement is not apply reached within 5 days of receipt of the Transferor’s Notice, as determined by an investment banker or appraiser of national reputation reasonably acceptable to Permitted Transfersboth the Transferor and such Option Holders (the fees and expenses of which shall be shared equally by the Transferor, on the one hand, and all such Option Holders requesting such valuation, on the other hand), in which case the date of the Transferor’s Notice shall be deemed the date the cash value of such consideration is so determined.
(b) The RFO Offeror shallCompany, prior to at the Transfer election of any Ordinary Shares to which the Board (acting by majority vote, excluding, for purposes of this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) if the Transferor is an Investor (or Permitted Transferee thereof), any Investor Designee designated to the Board by such Investor pursuant to Article 2 hereof (and if such Transferor is WCAS (or Permitted Transferee thereof), also excluding ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ if he is then an Investor Designee of WCAS), and (ii) if the Transferor is ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of his Permitted Transferees or Affiliates, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is then a director of the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇), shall have the first right and option, exercisable at any time within the first [__] days following the date of the Transferor’s Notice, to exercise the Option to purchase from the Transferor the Subject Securities pursuant to the Option. If the Option is not exercised by the Company within the first [__] days after the date of the Transferor’s Notice, then the other Option Holders shall have the right and option, exercisable at any time within the first [__] days following the date of the Transferor’s Notice, to exercise the Option and purchase from the Transferor the Subject Securities pursuant to the Option, in which event, such other Option Holders may elect to purchase the Subject Securities in the proportions upon which they mutually agree or, if they are unable to agree upon an allocation of such Subject Securities among themselves, then in the proportion that the number of Ordinary shares of Common Stock held by each such Option Holder which desires to participate in the purchase of such Company Securities pursuant to the Option bears to the aggregate number of shares of Common Stock held by all such Option Holders that desire to participate in the purchase of such Company Securities pursuant to the Option. For purposes of the foregoing sentence, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares proposed to be disposed of (the “RFO Ordinary and NVC Shares”), (ii) the proposed purchase price per RFO Ordinary Shareheld by such Person, and payment and other material terms and conditions and (iii) irrespective of the Conversion Limitation. Acceptance of the Option by an irrevocable offer to sell Option Holder shall be in a writing delivered to the RFO Offeree(s) Transferor and the RFO Ordinary Shares set forth in Company, which shall deliver copies thereof to the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinother Option Holders.
(c) The RFO Offeree(s) collectively shall have If the right to purchase (the “Right of First Offer”), any or Option is accepted in a manner such that all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, Company Securities covered by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof Transferor’s Notice are to be purchased by each RFO Offeree the Option Holders, the Transferor shall, subject to Section 3.03, Transfer such Company Securities free of all liens and encumbrances (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held other than restrictions imposed by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may bethis Agreement) to the number respective Option Holder purchasers thereof against delivery by the Option Holder purchaser of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery the applicable consideration payable to the RFO Offeror of an RFO Exercise in respect Transferor therefor. Unless, through exercise of the relevant Remaining RFO Ordinary Shares within 10 Option, all the Company Securities proposed to be transferred in the Transferor’s Notice are to be acquired by one or more Option Holders, the Transferor may, subject to Section 3.03, either (teni) Business Days of such re-offer, after which time such re-offer shall lapse and Transfer the re-offer Company Securities subscribed for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If by the RFO Offeree(s) shall have delivered an RFO Exercise Option Holders at the applicable purchase price therefor to the RFO Offeror within Option Holders or (ii) Transfer the RFO Response Period for all Subject Securities that were subject to the RFO Ordinary Shares, Option to a third party Transferee at the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and same purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms price set forth in the RFO Transferor’s Notice (or at a higher price) and on terms and conditions no less favorable to the Transferor than the terms and conditions set forth in the Transferor’s Notice; provided, however, that such period Transfer shall be extended following such occur no later than 90 days after the date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain Transferor’s Notice. If such approvals, consents or authorizations, or make Transfer does not occur within such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer90 day period, then the RFO Offeror Company Securities shall have be re-offered to the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject Option Holders under this Section 3.02 prior to any of the restrictions set forth in subsequent Transfer otherwise covered by this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Section 3.02. The transactions contemplated by this Section 3.02 shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority consummated in connection accordance with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.33.03.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Stockholders Agreement (Perry Corp), Stockholders' Agreement (Barasch Richard A)
Right of First Offer. (a) Other than Prohibited TransfersExcept for a Permissible Transfer, if if, at any time after the Lock Up Period date hereof, a Shareholder (the “ROFO Seller”) desires to Transfer any or all of its shares of Capital Stock of the Company (the “Offered Securities”) other than pursuant to any Permitted TransferSection 4 or a Sale of the Company approved by the requisite vote of the members on the Company’s Board of Directors and the Shareholders, then such Transfer ROFO Seller shall be permitted only if such Shareholder deliver a written notice to the other Preferred Shareholders (the “RFO OfferorOffer Notice”) fully complies with of the ROFO Seller’s desire to Transfer such Offered Securities. The Offer Notice shall disclose (i) the identity of the Proposed Transferee, if any, (ii) the number of Offered Securities proposed to be Transferred, (iii) the terms and conditions of this Section 3.3; provided that the provisions proposed Transfer of this Section 3.3 shall not apply the Offered Securities, including the price per share to Permitted Transfersbe paid, and (iv) any other material facts relating to the proposed Transfer.
(b) The RFO Offeror shallUpon receipt of the Offer Notice, prior each Preferred Shareholder shall have the right and option to elect to purchase, at the price and on the terms stated in the Offer Notice, such Preferred Shareholders’ pro rata portion of the total number of Offered Securities equal to the Transfer product obtained by multiplying (i) the Offered Securities, by (ii) a fraction, the numerator of which is the number of shares held by such Preferred Shareholder (calculated on an as converted basis) and the denominator of which is the sum of the total number of shares of Capital Stock of the Company at that time owned by such Preferred Shareholder and all other Preferred Shareholders electing to purchase Offered Securities (calculated on an as converted basis) in accordance with Section 6(c). If (x) any Ordinary Shares Preferred Shareholder has delivered an Offer Acceptance (as defined below) providing for such Preferred Shareholder to which this Section 3.3 appliespurchase its full pro rata portion of the Offered Securities (each such Preferred Shareholder, give a “Pro Rata Purchaser”) and (y) not all of the Offered Securities have been proposed to be purchased pursuant to all Offer Acceptances, then the Company shall deliver a written notice (the “RFO Supplemental Offer Notice”) to each other Shareholder the Pro Rata Purchasers within five (each, an “RFO Offeree”), setting forth 5) days after the expiration of the ten (i10) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth Business Day period described in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
clause (c) The RFO Offeree(s) collectively below, and all Pro Rata Purchasers shall have the right to purchase any remaining Offered Securities, which shall, if necessary, be allocated pro rata among the Pro Rata Purchasers according to their holdings of the Company’s shares of Capital Stock (the “Right of First Offer”determined on an as converted basis), which right to purchase shall be exercised by a Pro Rata Purchaser delivering a supplemental written notice (a “Supplemental Offer Acceptance”) to the Company within five (5) days after delivery of the Supplemental Offer Notice setting forth the greatest number of remaining Offered Securities such Pro Rata Purchaser desires to purchase. Notwithstanding any or provision of this Section 6 to the contrary, if the Preferred Shareholders collectively fail to elect to purchase all of the RFO Ordinary Shares Offered Securities, then no Preferred Shareholder shall have the right to purchase any Offered Securities.
(c) Any election to purchase Offered Securities shall be made by delivering a written notice (the an “RFO ExerciseOffer Acceptance”) of exercise of the Right of First Offer to the RFO Offeror ROFO Seller and the Company within 20 ten (twenty10) Business Days from the date of following delivery of the RFO Offer Notice (stating the “RFO Response Period”)greatest number of Offered Securities such Preferred Shareholder is willing to purchase. Thereupon, irrevocably stating therein such portion or, if applicable, the day after the expiration of the RFO Ordinary Shares as five (5) day period for delivery of the Supplemental Offer Acceptance, the ROFO Seller shall be purchasedsell the Offered Securities to any Preferred Shareholder which has timely delivered an Offer Acceptance, collectively, by at the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof price and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, terms stated in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedOffer Notice.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise Preferred Shareholders fail to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of aggregate all of the RFO Ordinary Shares within Offered Securities, the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all ROFO Seller may proceed with a sale of the RFO Ordinary Shares as contemplated in Offered Securities within ninety (90) Business Days after the Offer Notice, subject to full compliance with Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”)7 hereof, to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable Person reasonably acceptable to the purchasers thereof than Company for the price and on the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) daysOffer Notice. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has Offered Securities are not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted sold pursuant to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.36 such Capital Stock shall again be subject to the restrictions contained in this Agreement and shall not be Transferred, except in compliance with the applicable provisions of this Agreement.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Shareholder Agreements (Realpage Inc), Shareholder Agreements (Realpage Inc)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time Following the date that is 24 months after the Lock Up first day of the Post-Call Option Period (such time period, the “ROFO Period”), any proposed Transfer of Shares (other than to a Shareholder desires Permitted Transferee or in a transaction pursuant to Section 3.5, Section 3.6 or Section 3.7) by Walgreens shall be subject to the right of first offer pursuant to, and Walgreens must first comply with the provisions of, this Section 3.4. In the event Walgreens proposes to Transfer any or all of its Shares (other than to a Permitted Transferee or in a transaction pursuant to any Permitted TransferSection 3.5, Section 3.6 or Section 3.7) during the ROFO Period (a “Sale”), then Walgreens shall furnish to Gibco a written notice of such proposed Transfer shall be permitted only if such Shareholder (the a “RFO OfferorSale Notice”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply less than 30 Business Days prior to Permitted Transfersany such proposed Transfer.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth Sale Notice shall include:
(i) (A) the number of Ordinary Shares proposed to be disposed of sold by Walgreens (the “RFO Ordinary Subject Shares”), (iiB) the proposed purchase price per RFO Ordinary Share, and payment and all other material terms and conditions conditions, to the extent then determined by Walgreens, in connection with such proposed Transfer, (C) the identity of any prospective third party purchasers, if known and (iiiD) the proposed Transfer date, to the extent then determined by Walgreens; and
(ii) an irrevocable invitation for Gibco (on behalf of itself or on behalf of any one or more of the shareholders of the Gibco Principal Investors to whom Gibco has assigned its rights under this Section 3.4) to make an offer to sell to purchase all (but not less than all) of the RFO Offeree(sSubject Shares for 100% cash consideration (unless otherwise agreed by Walgreens) the RFO Ordinary Shares and on any other terms and conditions set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinSale Notice.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within Within 20 (twenty) Business Days from following the date of delivery of the RFO Sale Notice (the “RFO Response Option Period”), irrevocably stating therein such portion Gibco (on behalf of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or itself or on behalf of any one or more wholly-owned Affiliates thereof of the shareholders of the Gibco Principal Investors to whom Gibco has assigned its rights under this Section 3.4) may make an offer to purchase all (but not less than all) of the Subject Shares on the other terms and conditions set forth in the proportion thereof Sale Notice by delivering to Walgreens an irrevocable notice (the “Purchase Notice”), which Purchase Notice, in order to be purchased by each RFO Offeree valid, shall set forth the cash purchase price for the Subject Shares applicable to such offer and include customary documentation (which may consist in or include one or more “highly confident” letter(s) from bank(s) or other financial institution(s)), in the context of private acquisitions, establishing with reasonable confidence Gibco’s (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion shareholders of the number Gibco Principal Investors’) ability to finance the transaction. Any Purchase Notice so delivered shall be binding upon the delivering party and irrevocable upon delivery. Gibco (on behalf of Ordinary Shares held by all RFO Offerees). To itself or on behalf of any one or more of the extent any RFO Offeree does not wish shareholders of the Gibco Principal Investors to purchase (or cause whom Gibco has assigned its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”rights under this Section 3.4) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have waived all of its (and such shareholders of such Gibco Principal Investor’s) rights to purchase any Subject Shares under this Section 3.4 if a Purchase Notice that complies with the above requirements shall not have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent Walgreens prior to the expiration of the RFO Option Period.
(d) In the event that Gibco (on behalf of itself or on behalf of any one or more of the shareholders of the Gibco Principal Investors to whom Gibco has assigned its rights under this Section 3.4) has delivered a valid Purchase Period Notice prior to the expiration of the Option Period, Walgreens shall be obligated to, within 10 Business Days, either accept or decline the offer set forth in the Purchase Notice. In the event that Walgreens shall have accepted, or shall not have declined, the offer set forth in such valid Purchase Notice within the 10 Business Day period referred to in the immediately preceding sentence, Walgreens and Gibco (on behalf of itself or on behalf of any one or more of the shareholders of the Gibco Principal Investors to whom Gibco has assigned its rights under this Section 3.4) shall negotiate in good faith definitive documentation for the purchase and sale of the Subject Shares on terms and conditions consistent with those contained in the Purchase Notice and on such other terms and conditions as may be agreed by Walgreens and Gibco (on behalf of itself or on behalf of such shareholders of the Gibco Principal Investors), with a view to execution and delivery of such definitive documentation as soon as reasonably appropriate actions have been taken practicable after the acceptance of such Purchase Notice or, in the absence of such acceptance, after such 10 Business Day period referred to in the immediately preceding sentence. The closing of the Transfer of such Subject Shares pursuant to such Purchase Notice shall take place within the time period set forth in the definitive documentation mutually agreed upon by Walgreens and the RFO Offeree(sPerson(s) that will acquire the Subject Shares (the “ROFO Purchaser”). Each of Walgreens, the Company, Gibco and the ROFO Purchaser (if not Gibco) agrees to obtain such use its reasonable best efforts to secure any regulatory approvals or other consents or approvals, consents or authorizationsand to comply with any Law necessary in connection with the offer, or make sale and purchase of such filings or registrations; and provided further that no such extension shall exceed 60 daysSubject Shares.
(e) If In the RFO Offeree(sevent that (i) a valid Purchase Notice is not delivered in compliance with Section 3.4(c) or (ii) Walgreens declines the offer set forth in the applicable valid Purchase Notice in compliance with Section 3.4(d), then, during the 120 day period following the expiration of the Option Period or the date on which Walgreens declines the offer set forth in the applicable valid Purchase Notice, respectively, Walgreens may Transfer all (but not less than all) of the Subject Shares to a third party but only if the purchase price for such Transfer is the same as or higher than the purchase price specified in the Purchase Notice in the case of (ii) above and the other terms and conditions for such Transfer are not less favorable in the aggregate to Walgreens than the terms and conditions for the proposed Sale of the Subject Shares specified in the Sale Notice, in the case of clause (i) above, or the terms and conditions offered by the ROFO Purchaser pursuant to the applicable valid Purchase Notice, in the case of clause (ii) above (and any such Transfer shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed be subject to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions first offer set forth in this Article IIISection 3.4). If at the end of the 120 day period set forth above in this Section 3.4(e), Walgreens has not entered into a definitive agreement providing for the Transfer of the Subject Shares to a third party in accordance with the foregoing sentence (or, if at the end of 180 days following the date of the Sale Notice, such Transfer has not been completed), then it shall be necessary for a separate Sale Notice to be delivered, and the terms and provisions of this Section 3.4 separately complied with, in order for Walgreens to consummate a Transfer of Shares during the ROFO Period (other than a Transfer to a Permitted Transferee or in a transaction pursuant to Section 3.5, Section 3.6 or Section 3.7).
(f) In connection with a proposed Transfer to which this Section 3.4 applies, Gibco may at any time at its option assign all or any portion of its rights under this Section 3.4 to, and substitute, one or more of the shareholders of Gibco for itself to act as the purchaser(s) or to exercise any other right of Gibco, or to satisfy any obligation of Gibco, under this Section 3.4; provided, however, that (i) notwithstanding any assignment of rights pursuant to this Section 3.4(f) (x) any notice required to be made by Walgreens pursuant to this Section 3.4 shall only be required to be made to Gibco, and Gibco shall be responsible for forwarding such Transfer notices to its permitted assigns and (y) any such permitted assigns shall not be relieved of the RFO Ordinary Shares is consummated on terms not more favorable any obligations it may have under this Section 3.4 as a result of Gibco failing to the purchasers thereof than the terms specified in the RFO Notice forward or such Person failing to receive such notices and (ii) the RFO Offeror provides written confirmation no assignment of rights pursuant to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.33.4(f) shall relieve Gibco of its obligations under this Agreement, including this Section 3.4(f).
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Shareholders’ Agreement (Walgreen Co), Purchase and Option Agreement (Walgreen Co)
Right of First Offer. (ai) Other than Prohibited TransfersIf, if at any time after Ordinary Shareholder, or any Preferred Shareholder proposes to sell any Equity Securities of the Lock Up Period Company (such holder, a Shareholder desires to Transfer other than pursuant to any Permitted Transfer“Transferor”), such Transfer then the Transferor shall be permitted only if such Shareholder give Yang Lei (the “RFO OfferorROFO Right Holder”) fully complies with a written notice of the Transferor’s intention to make the Transfer (the “Transfer Notice”), which shall include a description of the Equity Securities of the Company proposed to be transferred including specifying the number of Equity Securities and the material terms of this Section 3.3; provided that and conditions, including the provisions of this Section 3.3 shall not apply price, pursuant to Permitted Transferswhich the Transferor proposes to Transfer the Equity Securities (the “Offered Shares”).
(bii) The RFO Offeror shall, prior Transfer Notice shall constitute the Transferor’s offer to Transfer the Equity Securities to the Transfer ROFO Right Holder, which offer shall be irrevocable for a period of any Ordinary Shares to which this Section 3.3 applies, give written notice fifteen (“RFO Notice”15) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of days (the “RFO Ordinary ROFO Notice Period”).
(iii) Upon receipt of the Transfer Notice, the ROFO Right Holder shall have the right until the end of the ROFO Notice Period, through Gold Guard Investments Limited or any other offshore entity wholly owned by him, to offer to purchase the following amount of Offered Shares (whichever is less, the “ROFO Shares”)): (x) 85,772,389 Shares which represents 5% of all issued and outstanding Ordinary Shares (on a fully diluted and as-converted basis) of the Company upon the closing of the transaction under the ESOP Subscription SPA, or (iiy) all of the proposed purchase Offered Shares, at the same price per RFO Ordinary Share, and payment and other subject to the same material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth as described in the RFO Transfer Notice at by notifying the same price per Ordinary Share Transferor and on the same terms Company in writing (a “ROFO Offer Notice”) before expiration of the ROFO Notice Period. Any ROFO Offer Notice so delivered shall be binding upon delivery and conditions as set forth thereinirrevocable by the ROFO Right Holder.
(civ) The RFO Offeree(s) collectively shall have If the right to purchase (the “ROFO Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree Holder does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Sharesdeliver a ROFO Offer Notice during the ROFO Notice Period, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) he shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of waived all of his rights to purchase the RFO Ordinary ROFO Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of under this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.7.2A.
Appears in 2 contracts
Sources: Shareholder Agreement (Hello Inc. /Cayman Islands/), Shareholder Agreement (Hello Inc. /Cayman Islands/)
Right of First Offer. (a) Other than Prohibited TransfersFollowing the Closing Date, if at any time after member of the Lock Up Period WHP Group, on the one hand, or any member of the Express Group, on the other hand, identifies any Retail Opportunity that it intends to acquire or with respect to which it intends to enter into a Shareholder desires partnership, joint venture or other similar arrangement with respect to Transfer other than pursuant to any Permitted Transferthe acquisition of Intellectual Property, excluding the Contributed Assets (each such Transfer opportunity, a “ROFO Opportunity”, and such person identifying the ROFO Opportunity, the “ROFO Party”) the ROFO Party shall be permitted only if such Shareholder provide written notice (the “RFO OfferorROFO Notice”) fully complies to the Express Holder (in the case that a member of the WHP Group is the ROFO Party) or the WHP Holder (in the case that a member of the Express Group is the ROFO Party), as applicable (the party receiving such notice, the “ROFO Counterparty”), of such ROFO Opportunity (together with the material terms and conditions of, and any other pertinent information or document relating to, such ROFO Opportunity). Upon receipt of this Section 3.3; provided the ROFO Notice, the ROFO Counterparty shall have a right of first offer (“ROFO”) with respect to such ROFO Opportunity such that the provisions of this Section 3.3 shall not apply Express Group and the WHP Group can jointly pursue such ROFO Opportunity under a structure similar to Permitted Transfersthe Transactions (other than the transactions contemplated by the Investment Agreement).
(b) The RFO Offeror shall, prior to In the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth event (i) the number of Ordinary Shares proposed ROFO Counterparty provides written notice to be disposed of (the “RFO Ordinary Shares”), ROFO Party that it declines the opportunity to jointly pursue such ROFO Opportunity or (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon following its receipt of the ROFO Notice either (x) the ROFO Counterparty fails to inform the ROFO Party that the ROFO Counterparty desires to jointly pursue the ROFO Opportunity with the ROFO Party or (y) the ROFO Party and the ROFO Counterparty, after using commercially reasonable efforts to negotiate, fail to reach an agreement on the terms and conditions of the ROFO Opportunity and the ROFO Party delivers written notice to the ROFO Counterparty that the ROFO Party has made a good faith determination that the parties will not reach an agreement on the terms and conditions of the ROFO Opportunity, such ROFO Opportunity shall be deemed a “Passed ROFO Opportunity” until the Passed ROFO Opportunity Cutoff Date. From the Passed ROFO Opportunity Start Date until the Passed ROFO Opportunity Cutoff Date, the ROFO Party shall be permitted to proceed with the applicable Passed ROFO Opportunity on its own or with a third party so long as such third-party transaction is on terms and conditions no more favorable to the third party than those set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection ROFO Notice with such purchase to be obtained or made, respect to the extent ROFO Counterparty. If the ROFO Party does not consummate the Passed ROFO Opportunity on or prior to the expiration Passed ROFO Opportunity Cutoff Date, such ROFO Opportunity will no longer be considered a Passed ROFO Opportunity; provided that if the ROFO Party has entered into a definitive agreement with a third party between the Passed ROFO Opportunity Start Date and the Passed ROFO Opportunity Cutoff Date providing for the consummation of such ROFO Opportunity, the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) ROFO Party is permitted to obtain fulfill its obligations under such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysdefinitive agreement.
(ec) If Beginning on the RFO Offeree(sthird (3rd) shall not have completed the purchase of all anniversary of the RFO Ordinary Shares Closing Date, if the Express Group and the WHP Group have not jointly consummated at least two ROFO Opportunities within the RFO Purchase Periodthree years since the Closing Date, as extended as provided either the Express Holder or the WHP Holder may elect to terminate the rights and obligations contained in this Section 7.9 and in Section 3.3(d), or together have failed 7.11 upon written notice to deliver RFO Exercises within the RFO Response Period for all of other Member and the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty Company (60) days thereafter (the a “Transfer PeriodROFO Termination Election”). Upon a ROFO Termination Election by either the Express Holder or the WHP Holder, to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of Express Holder and the restrictions WHP Holder hereby agree that the rights and obligations set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice this Section 7.9 and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation Section 7.11 shall terminate and be of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents no further force or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3effect.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Express, Inc.), Limited Liability Company Agreement (Express, Inc.)
Right of First Offer. (a) Other than Prohibited TransfersSubject to Section 4.1 and Section 7.1, if at any time after the Lock Up Period a and except as otherwise allowed under Section 4.2, no Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such or Subordinate Shareholder (the “RFO OfferorTransferor”) fully complies with may, at any time, Transfer any Equity Securities legally or beneficially held by it, except pursuant to the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.following provisions:
(ba) The RFO Offeror shall, prior Prior to the consummating any such Transfer of any Ordinary Shares to which this Section 3.3 appliesthe Equity Securities, give the Transferor shall deliver a written notice (the “RFO Offer Notice”) to each other Shareholder (each, an the “RFO OffereeOfferees”), setting forth (i) its bona fide intention to Transfer Equity Securities to a third party, the number and type of Ordinary Shares proposed Equity Securities to be disposed of Transferred (the “RFO Ordinary Subject Shares”), the price at which such Transferor wishes to sell the Subject Shares (ii) the proposed purchase price per RFO Ordinary Share“Offer Price”), and payment and any other material terms and conditions and of the offer.
(iiib) The Offer Notice shall constitute, for a period of 15 days from the date on which it shall have been deemed given, an irrevocable and exclusive offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice each Offeree (or any direct or indirect wholly-owned Subsidiary designated by an Offeree), at the same price per Ordinary Share and on Offer Price, a portion of the same terms and conditions as set forth thereinSubject Shares not greater than the proportion that the number of Equity Securities owned by such Offeree bears to the total number of Equity Securities owned by all the Offerees.
(c) The RFO Offeree(sEach Offeree (or a designated direct or indirect wholly-owned Subsidiary thereof) collectively shall have may accept the offer set forth in an Offer Notice by giving notice to the Transferor, prior to the expiration of such offer, specifying the maximum number of the Subject Shares that the Offeree wishes to purchase. Any Offeree may exercise the right to purchase (all or a portion of Equity Securities pursuant to this Section 4.3 by causing such Person(s) to which such Offeree would be permitted to Transfer Equity Securities pursuant to Section 4.2 to purchase such all or portion of Equity Securities directly from the “Right of First Offer”)Transferor, any or all of if so specified in the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer given to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(sTransferor pursuant to this Section 4.3(c) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(sSection 4.3(d)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If one or more Offerees do not agree to purchase all of the RFO Offeree(sSubject Shares to which such Offerees are entitled (such shares not purchased, the “Offeree Remaining Shares” and together with Offeree Remaining Shares of all other Offerees, the “Aggregate Remaining Shares”), the Transferor shall promptly so notify each Offeree that has agreed to purchase all of the Subject Shares so entitled (each a “Second Round Offeree”), such notice to constitute an offer to sell, irrevocable for fifteen (15) shall have delivered an RFO Exercise days, to each such Offeree, at the Offer Price, a portion of the Aggregate Remaining Shares not greater than the proportion that the number of Equity Securities owned by such Second Round Offeree bears to the RFO Offeror within the RFO Response Period for total number of Equity Securities owned by all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon Second Round Offerees. Each Second Round Offeree shall notify the terms set forth in the RFO Notice; providedTransferor, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of such offer, specifying the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) number of Aggregate Remaining Shares that such Offeree agrees to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 dayspurchase.
(e) If the RFO Offeree(s) shall not have completed Offerees in the aggregate agree to purchase of any or all of the RFO Ordinary Subject Shares pursuant to this Section 4.3, they shall pay in cash or immediately available funds for and the Transferor shall deliver valid title to, free and clear of any Lien, such Subject Shares, subject to receipt of any necessary or advisable third party approvals or any Governmental Approvals, within fifteen (15) days following completion of the RFO Purchase Period, as extended as provided procedures set forth in Section 3.3(d), subsection (b) and (d) hereof.
(f) If the offers made by the Transferor to the Offerees pursuant to subsections (b) and (d) hereof expire without an agreement by one or together have failed more Offerees to deliver RFO Exercises within the RFO Response Period for purchase all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise Subject Shares, the Right of First Offer, then the RFO Offeror Transferor shall have the right for sixty (60) days thereafter to enter into a definitive agreement with respect to such Transfer and ninety (90) days to effect the “Transfer Period”of the balance of the Subject Shares to any third party or parties, for cash, at a price not less than the Offer Price, and upon terms not otherwise more favorable to the transferee or transferees than those specified in the Offer Notice, subject to the execution and delivery by such third party of an assignment and assumption agreement, in form and substance satisfactory to the other Shareholders, pursuant to which such third party shall assume all of the obligations of a party pursuant to or under this Agreement. In the event such Transfer is not consummated within such ninety (90) day period, the Transferor shall not be permitted to sell its Equity Securities pursuant to this Section 4.3 without again complying with each of the requirements of this Section 4.3; provided, that such ninety (90) day period should be extended automatically as necessary (i) to apply for and obtain any Governmental Approvals that are required to consummate such Transfer, so long as the Transferor is making good faith efforts to obtain such Governmental Approvals as soon as practicable in accordance with applicable Law and (ii) in the event that Section 4.4, 4.5, 4.6 or 4.7 applies, to complete the procedure as provided therein. If there is such extension, the relevant period will end on the fifth Business Day following the receipt of such Governmental Approvals.
(g) The provisions of this Section 4.3 shall continue to be effective following the completion of an IPO; provided that, following the completion of the IPO, (i) this Section 4.3 shall not apply to any sale of any Equity Securities on the primary securities exchange or quotation system by or through which such Equity Securities are traded, by any Management Member or its Subordinated Shareholders in an amount generating gross sale proceeds to such Management Member and its Subordinated Shareholders in the aggregate of not more than US$1.0 million during any twelve-month period, and (ii) if the proposed Transfer would be a block trade or otherwise on the open market (whether pursuant to Rule 144 or otherwise), including without limitation a block trade to dispose a financial institution who will resell such Equity Securities as described in Section 4.1(a), then (x) the Offer Notice shall set forth the Transferor’s intention to sell on the open market in addition to the matters required to be set forth pursuant to Section 4.3(a) and (y) notwithstanding anything to the contrary in Sections 4.3(b) and (c), an Offeree’s notice setting forth its intention to accept the offer must be delivered to the Transferor within seventy-two hours of receipt of the RFO Ordinary Shares in one Offer Notice, and if an Offeree fails to deliver such notice within such period, the Offering Notice given to such Offeree shall expire upon expiration of such period and (z) Section 4.3(d) shall not apply.
(h) Notwithstanding the foregoing, and whether or more Transfers thereof without being subject to any not an IPO is completed, each Shareholder’s right of the restrictions first offer set forth in this Article III; provided, however, that (i) Section 4.3 shall terminate in the event such Transfer Shareholder ceases to own at least 50% of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that Equity Securities owned by such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date Shareholder as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Closing Date.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Yahoo Inc)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant Prior to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder by the Fugro Member of all or any of its Class A-2 Units (the “RFO OfferorSubject Interest”) fully complies other than to a Permitted Transferee, the Fugro Member must first comply with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.11.7:
(ba) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) Fugro Member shall first deliver to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of Class A Member (the “RFO Ordinary SharesOfferees”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO ExerciseOffer Notice”) that sets forth the number of exercise its Class A-2 Units represented by the Subject Interest, the amount that the Fugro Member proposes to be paid for the Subject Interest (the “Sale Price”), the manner of payment and the material terms of such sale. The Offer Notice shall constitute an irrevocable offer by the Fugro Member to sell to the Offerees the Subject Interest for cash at the Sale Price on the terms set forth in the Offer Notice. Each of the Right of First Offer to Offerees shall have until the RFO Offeror within 20 (twenty) 20th Business Days from Day following the date of delivery of the RFO Offer Notice (the “RFO Response Offer Period”), irrevocably stating therein ) in which to notify the Fugro Member that it accepts such offer as to all or any portion of the RFO Ordinary Shares as Subject Interest offered to such Offeree for the Sale Price (or the applicable portion thereof based on the portion of the Subject Interest such Offeree elects to purchase) and on the payment terms set forth in the Offer Notice, which notice shall specify the maximum portion of the Subject Interest it wishes to purchase.
(b) If more than one Offeree elects to purchase all or any portion of the Subject Interest prior to the expiration of the Offer Period and such Offerees in the aggregate elect to purchase an amount that exceeds the Subject Interest, the Subject Interest shall be purchased, collectively, allocated among such Offerees pro rata according to their respective Class A Percentage Interests up to the maximum portion of the Subject Interest specified by each such Offeree in its notice until the RFO Offeree(sentire Subject Interest shall have been so allocated or each Offeree shall have been allocated the maximum portion of the Subject Interest specified by each such Offeree in its notice.
(c) and/or If one or more wholly-owned Affiliates thereof and Offerees accept such offer with respect to all but not less than all of the proportion thereof to be purchased by each RFO Offeree (or Subject Interest, a closing of the purchase of such Affiliate(s)). Each RFO Offeree Subject Interest shall have take place at the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based principal office of the Company at 10:00 a.m. on the number of Ordinary Shares held by such RFO Offeree as 15th Business Day after the date on which the Offer Notice was delivered unless the parties agree on a proportion different place or time. The Sale Price shall be payable in accordance with the payment terms of the number Offer Notice. The definitive agreements providing for the purchase of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered Subject Interest by the RFO Offeror Offerees shall include customary representations and warranties by the Fugro Member regarding its valid title to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect ownership of the relevant Remaining RFO Ordinary Shares within 10 Subject Interest, free and clear of all liens, claims and encumbrances (tenexcluding those arising under securities laws and this Agreement) Business Days and its authority, power and right to enter into and consummate the purchase of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedSubject Interest.
(d) If the RFO Offeree(s) Offerees do not elect to purchase all but not less than all of the Subject Interest for the Sale Price prior to expiration of the Offer Period, the Fugro Member shall have delivered an RFO Exercise the right, subject to the RFO Offeror within other provisions of this Article XI, to sell the RFO Response Period Subject Interest for all a period of 120 calendar days (the RFO Ordinary Shares, “Sale Period”) at a price per share no less than the RFO Offeror Sale Price and RFO Offeree(s) shall be respectively bound, and shall complete on other terms no more favorable to the sale and purchase of Transferees thereof than offered to the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth Offerees in the RFO Offer Notice; provided, however, that such period the Fugro Member shall not be permitted to sell the Subject Interest to a Prohibited Transferee. The Fugro Member shall be extended following such date as necessary permitted to permit all required approvals, consents engage a qualified investment banking firm or authorizations from, or filings or registrations with, any Governmental Authority professional adviser in connection with such purchase proposed Transfer; provided that any fees and expenses payable to such investment bank or professional advisor shall be obtained borne solely by the Fugro Member; provided, further, that the Fugro Member shall not be charged any fees or made, to expenses for the extent prior to the expiration management time of the RFO Purchase Period reasonably appropriate actions have been taken by officers of the RFO Offeree(sCompany and its Subsidiaries or for any of the other assistance set out in Section 11.7(e) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysbelow.
(e) If During the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Sale Period, as extended as provided the Company shall reasonably cooperate with the Fugro Member in Section 3.3(d)connection with such proposed Transfer, or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offerincluding, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth potential Transferee executing and delivering to the Company a confidentiality agreement in this Article III; providedform and substance reasonably acceptable to the Company, however, that by (i) such Transfer permitting any potential Transferee to conduct a due diligence review of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice Company, its Subsidiaries and their respective businesses, operations, prospects, assets, liabilities, financial condition and results of operations and (ii) making available the RFO Offeror provides written confirmation officers of the Company and its Subsidiaries for the purpose of making presentations to any such potential Transferee and answering questions posed by them, which, in any case, shall be during normal business hours, upon reasonable advance notice; provided that the Company will not be subject to a due diligence process which imposes an unreasonable burden to the RFO Offeree(sCompany or its operations. If the Fugro Member does not Transfer the Subject Interest before the end of the Sale Period, it may not sell any Subject Interest without repeating the foregoing procedures. Upon the consummation by the Fugro Member of any Transfer pursuant to this Section 11.7(d) that such terms comply of a Subject Interest representing a Class A/A-1/A-2 Percentage Interest of at least fifteen percent (15%), the Fugro Member and its Transferee may, by written notice to the Company given contemporaneously with clause (i) hereof prior to the consummation of such sale; and provided furtherTransfer, that elect to have the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, Transferee succeed to the extent prior to the expiration specific rights and obligations of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end Fugro Member under this Agreement in place of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereofFugro Member, and such director substitution of the Transferee for the Fugro Member shall execute a letter of resignationtake effect without any further action by the Company or the Members.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Hc2 Holdings, Inc.), Business Purchase Agreement (Hc2 Holdings, Inc.)
Right of First Offer. (a) Other than Prohibited TransfersSubject to the terms and conditions specified in this Section 2.3, if at any time after the Lock Up Period each Investor Holder and Designated Executive hereby grants to each other Investor Holder and Designated Executive a Shareholder desires to Transfer other than pursuant right of first offer with respect to any Permitted Transfer, future Transfers by such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms Investor Holder or Designated Executive of this Section 3.3Shares; provided that the provisions Investor Holders and Designated Executives shall not have any right of first offer with respect to any proposed Transfer by any Investor Holder or Designated Executives if the Transfer is, or the Transfer, taken together with all previous Transfers of the Investor Holders or the Designated Executives, is for Shares representing less than 10% of the shares of Class A Common Stock owned by the Investor Holders or the Designated Executives, respectively, on the date of this Section 3.3 Agreement. Each time any Investor Holder or Designated Executive proposes to Transfer any Shares, such Investor Holder or Designated Executive (the "ROFO Party") shall not apply first offer to Permitted Transferssell such Shares to the other Investor Holders and Designated Executives (each, a "ROFO Offeree"), provided that no Investor Holder that is an Affiliate of the Investor Holder that is the ROFO Party shall constitute a ROFO Offeree, in accordance with the following provisions:
(a) the ROFO Party shall deliver a written notice (a "ROFO Notice") stating its bona fide intention to Transfer such Shares and the number of Shares offered (the "Subject Shares").
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, Each Investor Holder and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively Designated Executive that constitutes a ROFO Offeree shall have the right to purchase (the “Right number of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Subject Shares as shall be purchased, collectively, equal to (i) the aggregate number of Subject Shares multiplied by (ii) the RFO Investor Holder's or the Designated Executive's Proportionate Percentage. The amount of shares each Investor Holder and Designated Executive is entitled to purchase under this Section 2.3 shall be referred to as its "Pro Rata Amount". The ROFO Offeree or Offerees holding a majority of the Pro Rata Amounts that wish to exercise their rights pursuant to this Section 2.3 (the "Lead Offeree(s)") and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the rightright to determine the terms and conditions of the offer to be made pursuant to this Section 2.3. By written notification (the "ROFO Response Notice") delivered by the Lead Offeree within thirty (30) calendar days after delivery by the ROFO Party of the ROFO Notice, but such Lead Offeree shall not be required, make an offer to the ROFO Party (with a copy to the other ROFO Offerees) to purchase the Subject Shares, on the price and terms contained in the ROFO Response Notice, on behalf of all ROFO Offerees.
(c) Within ten (10) calendar days after delivery by the Lead Offeree(s) of the ROFO Response Notice, each other ROFO Offeree shall notify the Lead Offeree(s) in writing of the portion of its Pro Rata Amount that such ROFO Offeree is electing to purchase on the price and terms contained in the ROFO Response Notice. In the event that any ROFO Offeree does not elect to purchase its Pro Rata Amount (or cause its wholly-owned Affiliate(sany portion thereof) during such ten (10) calendar day period, then the Lead Offeree(s) shall be obligated to purchase all such unelected Pro Rata Amounts (if and to the extent the ROFO Party accepts the offer to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, terms and conditions set forth in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedROFO Response Notice.
(d) By written notification (the "ROFO Decision Notice") delivered by the applicable ROFO Party within twenty (20) calendar days after delivery of the ROFO Response Notice, the ROFO Party may accept or reject the offer to purchase on the terms contained in the ROFO Response Notice. If the RFO Offeree(s) shall have delivered an RFO Exercise ROFO Party accepts such offer to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Sharespurchase, the RFO Offeror ROFO Decision Notice will be deemed to constitute a valid, legally binding and RFO Offeree(s) shall be respectively bound, enforceable agreement between the ROFO Party and shall complete the participating ROFO Offerees for the sale and purchase of the RFO Ordinary Subject Shares. In the event that the ROFO Party rejects such offer to purchase or no ROFO Response Notice is received within the time period described in Section 2.3(b) above, the ROFO Party may Transfer or enter into a binding agreement to Transfer the Subject Shares to any third party purchaser at any time within thirty ninety (3090) days thereafter upon after the terms set forth in the RFO Notice; provided, however, that date of delivery of such period shall be extended following such date as necessary to permit all required approvals, consents rejection or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period20 day period described in Section 2.3(b), as extended as applicable; provided in Section 3.3(d)that any such binding agreement shall be consummated within 120 days after the end of such 90 day period, or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being but subject to any the provisions of the restrictions set forth in this Article III; provided, however, that (i) Section 2.4 below. Any such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof shall be for consideration greater than the terms that specified in the RFO Notice and ROFO Response Notice. If the Subject Shares are not Transferred by or an agreement to transfer the Subject Shares is not entered into by the ROFO Party within such 90 day period (ii) or in the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation case of such sale; and provided furtheran agreement, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have pursuant thereto has not been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at consummated within 120 days after the end of the Transfer Period, as extended as provided hereinsuch 90 day period), the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted right provided pursuant to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.32.3 shall be deemed to be revived and the Subject Shares shall not be offered unless first reoffered to the ROFO Offerees in accordance herewith.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Stockholders' Agreement (Exco Resources Inc), Stock Purchase Agreement (Miller Douglas H)
Right of First Offer. (a) Other than Prohibited TransfersSubject to Section 4.01, if at any time Shareholder proposes to Transfer all or any portion of its Shares (such Shareholder, the “Transferring Shareholder”), each other Shareholder (collectively, the “ROFO Shareholders”) shall have a right of first offer over such Shares, in accordance with the following provisions:
(i) The Transferring Shareholder shall provide each ROFO Shareholder with a written notice (an “Offer Notice”) of its desire to Transfer such Shares as soon as reasonably practicable prior to the anticipated Transfer date. The Offer Notice shall specify the number of Shares the Transferring Shareholder wishes to Transfer, the proposed purchase price and any other terms and conditions material to the sale proposed by the Transferring Shareholder. The offer set forth in the Offer Notice shall remain open and irrevocable during the Offer Acceptance Period (as defined below) and, to the extent such offer is accepted during such period, until the consummation of the Transfer contemplated by such offer).
(ii) Each ROFO Shareholder shall have a period of up to twenty (20) Business Days following delivery of the Offer Notice (the “Offer Acceptance Period”) to elect to purchase (or to cause one or more of its Affiliates to purchase) up to its Pro Rata Portion of such Shares on the terms and conditions set forth in the Offer Notice by delivering to the Transferring Shareholder a written notice indicating the amount of Shares over which such right is exercised.
(iii) If any ROFO Shareholder elects to purchase (or to cause one or more of its Affiliates to purchase) any of the Shares which are the subject of the proposed Transfer within the Offer Acceptance Period, such purchase shall be consummated within twenty (20) Business Days after the Lock Up expiration of the Offer Acceptance Period, or if applicable, the Re-Allotment Period a (as defined below), whichever is later; provided, that such twenty (20) Business Day period may be extended at the written request of any ROFO Shareholder desires for up to Transfer other than ninety (90) calendar days in order for such ROFO Shareholder to obtain any governmental approvals required for such purchase.
(iv) If any ROFO Shareholder fails to exercise its right of first offer pursuant to this Section 4.02 or exercises such right with respect to less than its Pro Rata Portion, the Transferring Shareholder shall deliver a written notice (the “Second Notice”) thereof within five (5) days after the expiration of the Offer Acceptance Period to each ROFO Shareholder that elected to purchase its entire Pro Rata Portion (the “Exercising Shareholder”). Each Exercising Shareholder shall have a right of re-allotment and may, by delivery of a written notice to the Transferring Shareholder within ten (10) days following delivery of the Second Notice (the “Re-Allotment Period”), elect to purchase up to an additional number of offered Shares equal to the product of (A) the number of unpurchased offered Shares multiplied by (B) a fraction, the numerator of which is the number of unpurchased offered Shares that the Exercising Shareholder elects to purchase (or cause one or more of its Affiliates to purchase) and the denominator of which is the aggregate number of unpurchased offered Shares that all of the Exercising Shareholders elect to purchase (or cause one or more of their respective Affiliates to purchase), and each Exercising Shareholder may specify in such written notice the maximum number of Shares that it elects to purchase.
(v) If none of the ROFO Shareholders elects to purchase any Permitted TransferShares offered pursuant to the Offer Notice within the Offer Acceptance Period, or the ROFO Shareholders (including for the avoidance of doubt the Exercising Shareholders) elect to purchase less than all of such Shares, then the Transferring Shareholder shall have a period of ninety (90) days thereafter to identify and negotiate with a third party regarding the Transfer of the remaining Shares, which Transfer shall be permitted only if such in accordance with Section 4.03; provided, that in no event shall the Transferring Shareholder (initiate discussions or negotiations with a third party regarding the “RFO Offeror”) fully complies with Transfer of the terms offered Shares prior to the expiration of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted TransfersRe-Allotment Period.
(b) The RFO Offeror shall, prior to In connection with the Transfer of all or any Ordinary portion of a Shareholder’s Shares pursuant to this Section 4.02, the Transferring Shareholder shall only be required to represent and warrant as to its authority to sell, the enforceability of agreements against such Shareholder, that the Shares to which be Transferred are free and clear of any Liens (other than restrictions imposed by this Agreement and pursuant to applicable laws), that it is the record owner of such Shares and that it has obtained or made all necessary consents, approvals, filings and notices from or with governmental authorities or third parties to consummate the Transfer. The Transferring Shareholder and the ROFO Shareholders shall each be responsible for the fees and expenses incurred by it in connection with any Transfer pursuant to this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein4.02.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer 4.02 shall not apply to any proposed Transfers of the RFO Ordinary Shares, procure the resignation of such number of directors nominated Shares by it, if any, as would be required a Tagging Shareholder pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation4.03.
Appears in 2 contracts
Sources: Shareholders Agreement (Zhou Xin), Shareholders Agreement (Sina Corp)
Right of First Offer. 6.1 Until the earlier of the seventh (7th) anniversary of the Closing Date or the date on which BP Pipelines or one of its Affiliates ceases to control the General Partner, BP Pipelines hereby agrees, and will cause its direct and indirect Subsidiaries (other than the Partnership Group) (each a “Potential BP Seller”) to agree, that if any Potential BP Seller decides to attempt to Transfer (other than to another Affiliate of BP Pipelines) any of the Subject Assets (in whole or in part) (each a “ROFO Asset”), such Potential BP Seller will:
(a) Other than Prohibited Transfersnotify the Partnership of its desire to sell such ROFO Asset in writing, if at any time after including a customary description of the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder ROFO Asset (the “RFO OfferorROFO Notice”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.);
(b) The RFO Offeror shallallow the Partnership up to forty five (45) days from its receipt of the ROFO Notice to make a binding written offer regarding the ROFO Asset, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares containing all material commercial and legal terms regarding such proposed to be disposed of sale and purchase transaction (the “RFO Ordinary SharesROFO Offer”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.;
(c) The RFO Offeree(sfollowing receipt of the ROFO Offer, negotiate with the Partnership exclusively and in good faith for a period of sixty (60) collectively days from the date on which BP Pipelines receives a ROFO Offer complying with Section 6.1(b) (if any) (the “Negotiation Period”) in order to give the Partnership an opportunity to enter into definitive documentation for the purchase and sale of the ROFO Asset on terms that are mutually acceptable to such Potential BP Seller and the Partnership; provided that, if such Potential BP Seller has not received a ROFO Offer in accordance with Section 6.1(b) or if the Partnership and such Potential BP Seller have not entered into a letter of intent or a definitive agreement with respect to the ROFO Asset within the Negotiation Period (as the same may be extended by a mutual written agreement of the Partnership and such Potential BP Seller), such Potential BP Seller shall have the right to purchase (Transfer such ROFO Asset to a third party following the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, failure by the RFO Offeree(sPartnership to deliver a ROFO Offer in compliance with Section 6.1(b) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) Negotiation Period, respectively, on any terms that are acceptable to obtain such approvals, consents or authorizations, or make Potential BP Seller and such filings or registrations; and provided further that no such extension shall exceed 60 daysthird party.
(e) If 6.2 The Parties acknowledge that any Transfer of any Subject Asset pursuant to the RFO Offeree(s) shall not have completed Partnership’s right of first offer under Section 6.1 is subject to the purchase terms of all of existing agreements with respect to such Subject Assets, including any terms in such existing agreements that would preempt, supersede or impair the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable rights granted to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required Partnership pursuant to Section 2.2 hereof6.1 with respect to any Subject Asset, and such director shall execute a letter be subject to and conditioned on the obtaining of resignationany and all necessary consents of security holders, governmental authorities, lenders or other third parties.
Appears in 2 contracts
Sources: Omnibus Agreement (BP Midstream Partners LP), Omnibus Agreement (BP Midstream Partners LP)
Right of First Offer. (a) Other than Prohibited TransfersSubject to the terms and conditions set forth in this Article IX, at least 30 days prior to any proposed Transfer of any Units, Unit Equivalents (if at permitted by their terms) or other equity securities (or interests therein) of Holdings LLC (“Subject Securities”) held by any time after the Lock Up Period Holder (excluding Transfers in a Shareholder desires to Transfer other than Public Sale or pursuant to any Section 5.2 or Transfers to a Permitted TransferTransferee), such Transfer shall be permitted only if such Shareholder the transferring Holder (the “RFO OfferorTransferring Holder”) fully complies with shall deliver a written notice (the “Offer Notice”) to Holdings LLC and each Major Member. The Offer Notice shall disclose in reasonable detail the identity of the prospective transferee(s) (if known), the number and type of Subject Securities to be transferred, the price and the other terms and conditions of the proposed Transfer. The Transferring Holder shall not consummate such proposed Transfer until at least 30 days after the delivery of the Offer Notice, unless the parties to the Transfer have been finally determined pursuant to this Section 3.3; provided that 9.2 and (if applicable) Section 9.3 prior to the provisions expiration of this Section 3.3 shall not apply such 30-day period (the date of the first to Permitted Transfersoccur of (x) the expiration of such 30-day period after delivery of the Offer Notice or (y) such final determination is referred to herein as the “Authorization Date”).
(b) The RFO Offeror shall, prior Holdings LLC may elect to purchase all or any portion of the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed Subject Securities to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on transferred upon the same terms and conditions as those set forth thereinin the Offer Notice by delivering a written notice of such election to the Transferring Holder within 15 days after the Offer Notice has been given to Holdings LLC (the “Election Period”). Within 15 days following delivery of the Offer Notice, Holdings LLC shall deliver written notice (the “Available Unit Notice”) to each Major Member setting forth the number and type of Subject Securities which it has elected to purchase and the number and type of Subject Securities which are available for purchase by the Major Members (“Available Units”). Each Major Member shall then be entitled to purchase a portion of the Available Units by delivering written notice (the “Available Unit Purchase Notice”) to Holdings LLC and the Transferring Holder within 10 days following delivery of the Offer Notice setting forth the maximum number of Subject Securities of each class or series which such Major Member desires to purchase.
(c) The RFO Offeree(sAvailable Units of each class or series shall first be allocated to each such Major Member in an amount equal to the lesser of (1) collectively the maximum number specified by each such Major Member in such Major Member’s Available Unit Purchase Notice and (2) the product of the number of Available Units and such Major Member’s Universal Percentage. Available Units shall have thereafter be allocated to each Major Member who has not been allocated the right to purchase maximum number specified in such Member’s Available Purchase Notice (the each a “Right of First OfferRemaining Major Member”), any or all each on a pro rata basis (calculated on the basis of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer Remaining Major Member’s Universal Percentage in relation to the RFO Offeror within 20 (twenty) Business Days from the date aggregate Universal Percentages of delivery of the RFO Notice (the “RFO Response Period”all Remaining Major Members); provided, irrevocably stating therein such portion of the RFO Ordinary Shares as in each case, that no allocation to any Major Member shall be purchased, collectively, greater than the maximum number specified by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof each such Major Member in such Major Member’s Available Unit Purchase Notice. Any Available Units not elected to be purchased by each RFO Offeree (or the end of such Affiliate(s)). Each RFO Offeree 10-day period shall during the immediately following five-day period be reoffered by Holdings LLC to the Major Members who have the right, but shall not be required, elected to purchase (or cause its whollyat least their full Universal Percentage of the Available Units and, if any of the Major Members indicates interest within said five-owned Affiliate(s) to purchase) day period in acquiring additional Available Units in an amount in excess of the aggregate amount of Available Units remaining, such RFO Offeree’s remaining Available Units will be allocated among such Major Members, each as allocated on a pro rata share basis (based calculated on the number basis of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror Major Member’s Universal Percentage in relation to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number aggregate Universal Percentages of Ordinary Shares held by them inter seall Remaining Major Members), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If Holdings LLC and/or any of the RFO Offeree(sMajor Members have elected to purchase Subject Securities from the Transferring Holder under this Section 9.2, the Transfer of such Subject Securities shall be consummated as soon as practical after the delivery of the election notice(s) to the Transferring Holder, but in any event (subject to compliance with Section 9.3, if applicable) within 15 days after the Authorization Date. If Holdings LLC and the Major Members do not elect, in the aggregate, to purchase all of the Subject Securities offered in the Offer Notice from the Transferring Holder, then, subject to compliance with Section 9.3 (if applicable), the Transferring Holder shall have delivered an RFO Exercise the right, within the 90 days following the Authorization Date, to Transfer such Subject Securities that Holdings LLC and the Major Members have not elected to purchase to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(sTransferee(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth specified in the RFO Offer Notice in the amounts specified in the Offer Notice at a price not less than the price per Subject Security specified in the Offer Notice and on other terms no more favorable in any material respect to the Transferee(s) thereof than specified in the Offer Notice; provided, however, that . Any Subject Securities not so Transferred within such 90-day period shall be extended following such date as necessary reoffered to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase Holdings LLC and the Major Members pursuant to be obtained or made, to the extent this Section 9.2 prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysany subsequent Transfer.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (ECPM Holdings, LLC), Limited Liability Company Agreement (ECPM Holdings, LLC)
Right of First Offer. (a) Other than Prohibited Transfers, if at If any time after the Lock Up Period a Shareholder Manager desires to Transfer other than pursuant to all or any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms portion of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary its Company Shares in a transaction to which this Section 3.3 applies4.1 applies (any such Manager, give a “ROFO Stockholder”), then each Principal Investor and MD Investor (each, a “ROFO Offeree”) shall have a right of first offer over such Company Shares, which shall be exercised in the following manner:
4.1.1. The ROFO Stockholder shall provide the ROFO Offerees with written notice (a “RFO ROFO Notice”) of its desire to each other Shareholder (each, an “RFO Offeree”), setting forth (i) Transfer such Company Shares. The ROFO Notice shall specify the number and class of Ordinary Company Shares proposed the ROFO Stockholder wishes to be disposed of (the “RFO Ordinary Shares”)Transfer, (ii) the proposed purchase price per RFO Ordinary Share, share (which purchase price shall be in cash or cash equivalents only) for each such class of Company Shares and payment and any other material terms and conditions and (iii) an irrevocable offer to sell material to the RFO Offeree(ssale proposed by the ROFO Stockholder.
4.1.2. The ROFO Offerees shall have a period of up to ten (10) Business Days following receipt of the RFO Ordinary ROFO Notice (the “ROFO Election Period”), to elect to purchase (or to cause one or more of their Affiliates to purchase), in the aggregate, all, but not less than all, of such Company Shares on the terms and conditions set forth in the RFO ROFO Notice at by delivering to the same price per Ordinary Share ROFO Stockholder written notice thereof (such electing ROFO Offeree, a “ROFO Purchaser”). In the event that the aggregate number of Company Shares of an applicable class that the ROFO Purchasers have elected to purchase exceeds the aggregate number of Company Shares of such class subject to the ROFO Notice, the number of Company Shares shall be sold to the ROFO Purchasers as follows:
(a) there shall be first allocated to each ROFO Purchaser a number of Company Shares of each applicable class equal to the lesser of (A) the number of Company Shares of such class elected to be purchased by such ROFO Purchaser and on (B) a number of Company Shares of such class equal to such ROFO Purchaser’s Pro Rata Portion; and
(b) the same terms and conditions balance, if any, of Company Shares of each applicable class not allocated pursuant to clause (1) above shall be allocated to those ROFO Purchasers which offered to purchase a number of Company Shares of the applicable class in excess of such ROFO Purchasers’ respective Pro Rata Portions in proportion, as set forth thereinnearly as practicable, to the respective number of Company Shares of the applicable class which each ROFO Purchaser offered to purchase.
(c) The RFO Offeree(s) collectively shall have If the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, ROFO Offerees elect to purchase (or to cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number one or more of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) their Affiliates to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary the Company Shares (which are the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect subject of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror proposed Transfer within the RFO Response Period for all the RFO Ordinary SharesROFO Election Period, the RFO Offeror and RFO Offeree(s) such purchase shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares consummated within thirty (30) days thereafter upon after the terms set forth in date on which each such ROFO Offeree notifies the RFO Notice; provided, however, that ROFO Stockholder of such period shall be extended following such date as election (subject to extension if necessary to permit the expiration or early termination of the HSR Waiting Period). Subject to Section 4.2, if the ROFO Offerees do not elect to purchase all required approvalsof the Company Shares within the ROFO Election Period, consents or authorizations fromthe ROFO Stockholder may Transfer all of the Company Shares of each class specified in the ROFO Notice at any time within one hundred and twenty (120) days following such period at a price which is not less than the purchase price specified in the ROFO Notice and on terms and conditions no more favorable, or filings or registrations with, in any Governmental Authority in connection with such purchase to be obtained or madematerial respect, to the extent prior to purchaser than those specified in the expiration of ROFO Notice, and thereafter the RFO Purchase Period reasonably appropriate actions have been taken by ROFO Stockholder may not Transfer any such Company Shares without first following the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions procedures set forth in this Article III; provided, however, that (i) such Section 4.1.
4.1.3. In connection with the Transfer of all or any portion of a ROFO Stockholder’s Company Shares pursuant to this Section 4.1 to one or more ROFO Offerees, the RFO Ordinary Shares is consummated on terms not more favorable ROFO Stockholder shall only be required to represent and warrant as to its authority to sell, the purchasers thereof than enforceability of agreements against the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided furtherROFO Stockholder, that the Transfer Period Company Shares to be transferred shall be extended following free and clear of any liens, claims or encumbrances (other than restrictions imposed by this Agreement and pursuant to applicable federal, state and foreign securities laws), that it is the record and beneficial owner of such date as Company Shares and that it has obtained or made all necessary to permit all required consents, approvals, consents filings and notices from governmental authorities or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers third parties to be obtained or made, to consummate the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) daysTransfer.
4.1.4. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the The provisions of this Section 3.3.
4.1 shall not apply to Transfers of Company Shares (fi) The RFO Offeror shallto Permitted Transferees in accordance with Section 3.2 (Permitted Transferees); (ii) pursuant to, or consequent upon the Transfer exercise of the RFO Ordinary Shares, procure drag-along rights set forth in Section 4.3 (Drag-Along Rights); (iii) consequent upon the resignation exercise of such number of directors nominated by it, if any, as would be required the tag-along rights set forth in Section 4.2 (Tag-Along Rights); (iv) pursuant to Section 2.2 hereof, 5 (Options to Purchase and such director shall execute Sell Shares) or (v) pursuant to a letter of resignationregistered public offering.
Appears in 2 contracts
Sources: Management Stockholders’ Agreement (J Crew Group Inc), Management Stockholders’ Agreement (J. Crew Inc.)
Right of First Offer. (a) Other than Prohibited Transfers, if at In the event that any time after the Lock Up Period Unitholder (a Shareholder “Transferring Unitholder”) desires to Transfer transfer any or all of its Units (the “ROFO Units”) to any person other than to an Affiliate Transferee (the “Third Party Purchaser”) and other than pursuant to any Permitted TransferSection 4.03 or Section 4.04, such Transfer then the Transferring Unitholder shall be permitted only if such Shareholder first give written notice (the “RFO OfferorROFO Notice”) fully complies with of such desire to the terms of this Section 3.3; provided that other Unitholders (the provisions of this Section 3.3 shall not apply to Permitted Transfers“ROFO Unitholders”).
(b) The RFO Offeror shallWithin thirty (30) days (the “ROFO Offer Period”) of receipt of the ROFO Notice by a ROFO Unitholder, prior such ROFO Unitholder shall have a right to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice make an offer (a “RFO NoticeROFO Offer”) to each other Shareholder (eachpurchase all, an “RFO Offeree”)but not less than all, setting forth (i) of the number of Ordinary Shares proposed to be disposed of ROFO Units (the “RFO Ordinary SharesROFO Sale”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase Each ROFO Offer (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”i) shall immediately be re-set forth the proposed amount and form of consideration and terms and conditions of payment offered by the RFO Offeror ROFO Unitholder and a summary of any other material terms pertaining to the other RFO Offeree(stransfer and (ii) must remain open for at least thirty (or if there is more than one other RFO Offeree, in 30) days following the proportion (as nearly as may be) to date on which the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to Transferring Unitholder receives the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedROFO Offer.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise Transferring Unitholder does not receive any ROFO Offer from a ROFO Unitholder within the ROFO Offer Period, or if all ROFO Unitholders inform the Transferring Unitholder in writing that they will not be exercising their right of first offer rights hereunder, then the Transferring Unitholder may, subject to the RFO Offeror within the RFO Response Period for requirements of Section 4.05(h), transfer all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the ROFO Units to a Third Party Purchaser at a price and on terms set forth in the RFO Notice; provided, however, that and conditions acceptable to such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysTransferring Unitholder.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares Transferring Unitholder receives a ROFO Offer within the RFO Purchase ROFO Offer Period, as extended as provided the Transferring Unitholder may accept or reject such ROFO Offer in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(dits sole discretion.
(f) or declined in writing to exercise the Right of First If a Transferring Unitholder accepts a ROFO Offer, then the RFO Offeror Transferring Unitholder and the ROFO Unitholder shall have negotiate in good faith to consummate the right for sixty ROFO Offer as promptly as reasonably practicable and in any event within forty-five (6045) days thereafter from the date of the ROFO Offer, and shall not transfer any ROFO Units described in such ROFO Offer to any Third Party Purchaser.
(g) If the “Transfer Period”Transferring Unitholder rejects a ROFO Offer from a ROFO Unitholder, then the Transferring Unitholder may, subject to the requirements of Section 4.05(h), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being sell any ROFO Units which are not subject to any accepted ROFO Offer to a Third Party Purchaser at a price higher than that offered in all of the restrictions rejected ROFO Offers, and on such terms and conditions which, when taken as a whole, are at least as favorable in the aggregate to the Transferring Unitholder as those set forth in this Article III; providedthe most favorable rejected ROFO Offer (as determined by the Board acting in good faith).
(h) The Transferring Unitholder may only sell ROFO Units to a Third Party Purchaser as permitted under Section 4.05(d) and Section 4.05(g), however, that and the Transferring Unitholder shall consummate such sale within one hundred and eighty (i180) such Transfer days of the RFO Ordinary Shares is consummated on terms not more favorable to conclusion of the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) ROFO Offer Period; provided that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent the Transferring Unitholder has used commercially reasonable efforts to obtain all required approvals and consents prior to the expiration of such 180-day period, the Transfer Period reasonably appropriate actions have been taken Transferring Unitholder may extend such 180-day period by the RFO Offeror up to 120 days if necessary to obtain any required regulatory approvals or third party consents.
(i) If the Transferring Unitholder does not meet the deadlines described in Section 4.05(h), then any proposed transfer by such approvals, consents or authorizations or make such filings or registrations; Transferring Unitholder shall once again be subject to the terms and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions conditions of this Section 3.34.05.
(fj) The RFO Offeror shallIn the event of a potential sale by a Transferring Unitholder to a Third Party Purchaser pursuant to the terms of Section 4.05(h), the Managers and Officers shall (i) permit such potential Third Party Purchaser, after executing a confidentiality agreement in a form satisfactory to the Board, to conduct a due diligence review of the Company and its business, operations, prospects, assets, liabilities, financial condition, and results of operations, and (ii) make available the officers and technical personnel of the Company, during normal business hours, upon reasonable advance notice and at such Transferring Unitholder’s sole cost and expense, for the Transfer purpose of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereofmaking presentations to, and answering questions from, such director shall execute a letter of resignationpotential Third Party Purchaser.
Appears in 2 contracts
Sources: Interim Sponsors Agreement (Dynegy Inc.), Interim Sponsors Agreement (Dynegy Inc.)
Right of First Offer. (a) Other than Prohibited TransfersAfter the third anniversary of the Effective Date and prior to a Final Exit Event or an Initial Public Offering, if at any time after one or more Dragging Members proposes to effect a Drag-Along Transaction (such Dragging Member(s), individually or collectively as the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfercase may be, such Transfer shall be permitted only if such Shareholder (the “RFO OfferorROFO Initiator”) fully complies ), then, prior to engaging in any discussions with any third party regarding a Drag-Along Transaction, the ROFO Initiator must comply with the terms of this Section 3.3; provided that the remaining provisions of this Section 3.3 shall not apply to Permitted Transfers9.7.
(b) The RFO Offeror shall, ROFO Initiator first must deliver a notice to the other Common Unitholders stating its bona fide intention to effect a Drag-Along Transaction (the “ROFO Notice”). On or prior to the Transfer 60th day after receipt of any Ordinary Shares the ROFO Notice, each Common Unitholder receiving a ROFO Notice will have the right, but not the obligation, to which this Section 3.3 appliesoffer, give by written notice to the ROFO Initiator and all other Common Unitholders (each Common Unitholder that makes such an offer, a “RFO Notice”) to each other Shareholder (each, an “RFO OffereeROFO Offeror”), setting forth to purchase all, but not less than all, of the Common Units then held by all of the other Common Unitholders (i) including the number of Ordinary Shares proposed to be disposed of ROFO Initiator), which offer shall include a cash purchase price per Common Unit (the “RFO Ordinary SharesROFO Offer Price”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein“ROFO Offer”).
(c) The RFO Offeree(s) collectively shall ROFO Initiator will have 180 days following the right last day to purchase make a ROFO Offer (such 180th day, the “Right of First OfferROFO Consummation Deadline”), any ) to (i) accept and consummate the ROFO Offer from the ROFO Offeror that offers the highest ROFO Offer Price or all (ii) consummate a Drag-Along Transaction for consideration per Common Unit equal to at least 105% of the RFO Ordinary Shares highest ROFO Offer Price and on other terms (taken as a whole) reasonably determined by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer ROFO Initiator to be no less favorable to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more ROFO Initiator than one other RFO Offeree, those contained in the proportion (as nearly as may be) to ROFO Offer that offers the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedhighest ROFO Offer Price.
(d) If the RFO Offeree(sROFO Initiator (i) shall have delivered an RFO Exercise receives one or more ROFO Offers, (ii) fails to consummate the RFO Offeror within ROFO Offer that offers the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase highest ROFO Offer Price prior to expiration of the RFO Ordinary Shares within thirty ROFO Consummation Deadline and (30iii) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary fails to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent consummate a Drag-Along Transaction prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First OfferROFO Consummation Deadline, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”)ROFO Initiator cannot, individually or collectively, again cause a transaction that would permit any Common Unit holders to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with invoke the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon 9.7 prior to the Transfer first anniversary of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationROFO Notice.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Contango Oil & Gas Co), Limited Liability Company Agreement (Contango Oil & Gas Co)
Right of First Offer. (a) Other than Prohibited Transfersin connection with an IPO as contemplated by Section 4.4, if at any time after the Lock Up Period or in connection with a Shareholder desires to Transfer other than pursuant to any Permitted Foreclosure Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with and subject to the terms of this any applicable Operating Agreement, if any Party proposes to Transfer any of the Asset Interests held by such Party, including Blackstone pursuant to Section 3.3; provided that 4.5 (a “ROFO Transferor”) to a Third Party purchaser, the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shallROFO Transferor agrees that, prior to before entering into negotiations with a Third Party, the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written Transferring Party will first provide notice (a “RFO ROFO Notice”) to each the other Shareholder Parties (each, the “ROFO Recipients”) that the ROFO Transferor proposes to pursue such a transaction. Each such ROFO Notice will invite the ROFO Recipient to submit to the ROFO Transferor an offer in writing (a “RFO OffereeROFO Offer”), setting forth which offer shall (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)irrevocable and in good faith, (ii) be for all cash (except SN may choose to fund a ROFO Offer with cash or SN Common Stock or a combination thereof) (any such ROFO Offer including SN Common Stock as consideration an “SN Equity Financed Offer”)), (iii) specify in reasonable detail the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and of such offer (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares including as set forth in Section 4.3(b) with respect to a SN Equity Financed Offer), (iv) shall provide for a closing date of no longer than ninety (90) days from the RFO Notice execution of a definitive purchase agreement and provide for no holdback or escrow of purchase price, and (v) shall remain open for acceptance by the ROFO Transferor for thirty (30) days after the ROFO Transferor’s receipt of such ROFO Offer, to purchase from the ROFO Transferor one hundred percent (100%) of the Asset Interests that are the subject of the ROFO Notice, which at the same price per Ordinary Share and on sole election of the same terms and conditions ROFO Transferor may be structured as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to a purchase of Working Interests or equity interests of an entity holding Asset Interests (the “Right of First OfferROFO Interests”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First . The ROFO Offer shall be submitted to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares ROFO Transferor within thirty (30) days thereafter after the ROFO Recipient’s receipt of the ROFO Notice and shall include a proposed definitive purchase agreement that such ROFO Recipient is prepared to execute upon the acceptance by the ROFO Transferor of the ROFO Offer. Upon the receipt by the ROFO Transferor of any ROFO Offer, the ROFO Transferor and the applicable ROFO Recipient shall negotiate in good faith for a period of thirty (30) days regarding the ROFO Offer. In the event the Parties are unable to reach agreement during such period, the ROFO Transferor may elect by notice to such ROFO Recipient submitted at any time during the 30-day period following such negotiation period to accept or reject the ROFO Offer (it being understood that a failure of the ROFO Transferor to submit an unqualified acceptance notice within such 30-day period shall constitute a rejection of the ROFO Offer). If the ROFO Transferor timely submits an acceptance notice, the ROFO Transferor and the applicable ROFO Recipient shall in good faith negotiate a definitive purchase and sale agreement (which shall include the terms and conditions set forth in the RFO Notice; providedROFO Offer) and use their reasonable best efforts to consummate the purchase and sale of the ROFO Interests as promptly as practicable and in any event within ninety (90) days from the execution of a definitive purchase agreement. If only one ROFO Recipient timely submits a ROFO Offer, howeverthe ROFO Transferor may effectuate the sale of all the ROFO Interests to such ROFO Recipient alone. If neither ROFO Recipient timely submits a ROFO Offer or any ROFO Offer is rejected (or deemed rejected as described above) by the ROFO Transferor, that such period shall be extended following such date the ROFO Transferor may effectuate a sale of all the ROFO Interests to a Third Party so long as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or (i) if a ROFO Offer was made, to the extent prior to the expiration Transfer price is at least one hundred percent (100%) of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions offer price set forth in this Article III; provided, however, that such ROFO Offer (itaking into account Section 4.3(b) such Transfer of below) and the RFO Ordinary Shares is consummated on other terms and conditions offered to the Third Party are not materially more favorable to the purchasers thereof Third Party than the terms specified in the RFO Notice those of such ROFO Offer; and (ii) the RFO Offeror provides written confirmation execution of definitive documentation for the sale of such ROFO Interests to the RFO Offeree(ssuch Third Party shall occur no later than two hundred and seventy (270) that days after a rejection (or deemed rejection) of such terms comply ROFO Offer.
(b) In connection with clause any SN Equity Financed Offer:
(i) hereof prior the determination of the value of SN Common Stock included in a SN Equity Financed Offer shall (i) apply an appropriate illiquidity discount, which may take into account, as applicable, the discounts applied to comparable private placements or block trades of comparable size as compared to the applicable market price of such securities and/or discounts applied to publicly traded common equity used as acquisition currency by relevant valuation methodologies customarily used by leading financial valuation firms in similar circumstances and (ii) be discounted for any adverse liquidity effects that are attributable to the payment of any applicable taxes associated with the receipt of such SN Common Stock, in each case (i) and (ii), as reasonably determined by the ROFO Transferor, provided, that no discount with respect to clause (ii) shall apply if the SN Equity Financed Offer includes a portion of cash consideration equal to or greater than the expected aggregate amount of tax payable by the ROFO Transferor, including Blackstone and any of its direct and indirect equity owners as a result of the consummation of such sale; SN Equity Financed Offer and provided further, assuming that the Transfer Period aggregate amount of such tax shall by computed using an assumed tax rate equal to the highest maximum combined marginal federal, state and local income tax rates applicable to an individual or corporate taxpayer resident in New York, NY;
(ii) the ROFO Offer shall provide for a fixed value, including a fixed value for the portion of consideration represented by SN Common Stock, payable upon closing, unless otherwise agreed to by the ROFO Transferor;
(iii) if the ROFO Transferor would beneficially own on a pro forma basis (calculated in accordance with clause (vi) below) more than 20% of the outstanding SN Common Stock, ▇▇▇▇▇▇▇ Energy shall provide representation rights for the ▇▇▇▇▇▇▇ Energy Board of Directors to the ROFO Transferor approximately equal to its pro forma beneficial ownership percentage of SN Common Stock following the consummation of any ROFO Offer pursuant to documentation reasonably acceptable to Blackstone;
(iv) no Event of Default (as such term may be extended following such date as necessary then defined under the SN Credit Agreement) shall have occurred under the SN Credit Agreement;
(v) ▇▇▇▇▇▇▇ Energy shall have a rating equal to permit all required approvals, consents or authorizations fromhigher than “B3” (or the equivalent) by ▇▇▇▇▇’▇ or its successors, or filings an equivalent rating by S&P or registrations withFitch, Inc. (or either of its successors);
(vi) the resulting share issuance will not cause the ROFO Transferor to beneficially own more than 35% of outstanding SN Common Stock on a pro forma basis excluding any Governmental Authority in connection with such Transfers to be obtained or made, to the extent SN Common Stock owned prior to the expiration of Effective Date or issued to Blackstone or GSO pursuant to this Agreement after the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.Effective Date;
(fvii) The RFO Offeror shall, upon the Transfer SN Common Stock shall be listed on the New York Stock Exchange or the NASDAQ Stock Market (or their respective successors); and
(viii) the SN Common Stock to be issued to the ROFO Transferor shall be entitled to the benefits of a registration rights agreement substantially similar in form and substance to the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationRegistration Rights Agreement.
Appears in 2 contracts
Sources: Interim Investors Agreement, Interim Investors Agreement (Sanchez Energy Corp)
Right of First Offer. 13.1 If any AHG Shareholder (aeach, a “ROFO Seller”) Other wishes to directly Transfer (other than Prohibited Transferswith respect to a Transfer permitted under Clauses 11.1.1 and 11.1.3) all or any portion of its Securities to a Third Party Purchaser (a “Prospective Buyer”) and if such Transfer of such Securities to a Prospective Buyer would, if when taken together with any Securities Transferred by such ROFO Seller in the prior twenty-four (24) months, represent a Beneficial Ownership of at any time after least five per cent. (5%) of the Lock Up Period Voting Shares in issue, such ROFO Seller shall not be entitled to effect such proposed Transfer until:
13.1.1 it has first issued written notice of the proposed Transfer (a Shareholder desires “ROFO Notice”) to the other AHG Shareholders (each such other AHG Shareholder, a “ROFO AHG Shareholder”) and the Company; and
13.1.2 the other provisions of this Clause 13 have been complied with.
13.2 The ROFO Notice shall set out:
13.2.1 the number and class of Securities that each ROFO Seller wishes to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO OfferorSubject Securities”);
13.2.2 each ROFO AHG Shareholder’s Proportionate Entitlement to acquire such Subject Securities; and
13.2.3 the price per Subject Security on which the ROFO Seller wishes to Transfer the Subject Securities.
13.3 Within ten (10) Business Days following the date of the ROFO Notice (the “ROFO Offer Period”), any ROFO AHG Shareholder (individually or in combination with any other ROFO AHG Shareholder) may elect to make an offer to purchase any number of the Subject Securities at the price set out in the ROFO Notice by issuing a written notice (a “ROFO Offer Notice”) fully complies with to the terms ROFO Seller and the Company setting out:
13.3.1 the cash price per Subject Security offered (which shall be no less than the price set out in the ROFO Notice);
13.3.2 the number of this Section 3.3Subject Securities each ROFO AHG Shareholder wishes to purchase from the ROFO Seller, which may include additional Subject Securities which the ROFO AHG Shareholder is prepared to purchase in excess of its Proportionate Entitlement (if such indication is included, such notice shall also constitute an “Excess Securities Notice”); provided and
13.3.3 if the ROFO Notice indicates that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of Subject Securities would result in the Prospective Buyer Beneficially Owning or controlling more than fifty per cent. (50%) of the outstanding Securities, whether such ROFO AHG Shareholder intends to exercise its tag along rights pursuant to Clause 14 if the ROFO Seller proceeds with the Transfer to the Prospective Buyer, (each such ROFO AHG Shareholder delivering a ROFO Offer Notice, a “ROFO Offeror”).
13.4 If a ROFO AHG Shareholder has not issued a ROFO Offer Notice by the end of the ROFO Offer Period in accordance with Clause 13.3, such ROFO AHG Shareholder shall be deemed to have waived all of its rights under this Clause 13 to make an offer for and/or to purchase any Ordinary Shares to which this Section 3.3 appliesSubject Securities set out in the relevant ROFO Notice.
13.5 Within ten (10) Business Days after the expiry of the ROFO Offer Period, give the ROFO Seller shall issue a written notice (each a “RFO ROFO Sale Notice”) to each other ROFO Offeror (or combination of ROFO Offerors) (if any) setting out:
13.5.1 subject to Clause 13.5.2, confirmation that the offer contained in such ROFO Offeror’s ROFO Offer Notice has been accepted;
13.5.2 the amount of the Subject Securities to be purchased by such ROFO Offeror plus, in accordance with Clause 13.6, in respect of each ROFO Offeror that has indicated an interest in purchasing additional Subject Securities in excess of its Proportionate Entitlement the amount of Excess Subject Securities to which such ROFO Offeror is entitled; and
13.5.3 the price per Subject Security payable by such ROFO Offeror (as set out in the relevant ROFO Offer Notice).
13.6 In the event that a ROFO AHG Shareholder does not respond to a ROFO Notice or a ROFO Offeror does not agree to subscribe for all of its Proportionate Entitlement of the Subject Securities on offer (eachsuch ROFO Offeror being a “Non-Fully Purchasing AHG Shareholder”) and the aggregate number of Subject Securities set out in all ROFO Offer Notices is less than the number of Subject Securities offered in the ROFO Notice (such excess Subject Securities being the “Excess Subject Securities”) then the ROFO Offerors that have indicated an interest in purchasing Subject Securities in excess of their Proportionate Entitlement pursuant to Clause 13.3.2 shall have the right pursuant to Clause 13.5.2 above, to purchase all or a portion of such Excess Subject Securities based upon their Proportionate Entitlement disregarding the Non-Fully Purchasing AHG Shareholders’ respective Proportionate Entitlements to acquire the Subject Securities, and the Company shall notify the relevant ROFO Offerors of the number of Subject Securities that have been allocated to them pursuant to their election pursuant to Clause 13.5.2.
13.7 Subject to Clauses 13.8 and 13.9 the offer of each ROFO Offeror (or combination of ROFO Offerors) contained in a ROFO Offer Notice or, if applicable, in an “RFO Offeree”Excess Securities Notice shall be irrevocable and such ROFO Offeror (or combination of ROFO Offerors) shall, subject to receipt of any Mandatory Regulatory Consents, be bound and obligated to purchase the number of Subject Securities set out in the ROFO Sale Notice or, if applicable, in an Excess Securities Notice issued to such ROFO Offeror (or combination of ROFO Offerors).
13.8 If:
13.8.1 no ROFO Offer Notices are received by the ROFO Sellers in accordance with Clause 13.3 before the ROFO Offer Period has expired, setting forth the ROFO Seller shall be entitled to agree to Transfer all (but not a portion only) of the Subject Securities to a Prospective Buyer; or
13.8.2 the aggregate number of Subject Securities set out in (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)all ROFO Sale Notices and, if applicable, (ii) all Excess Securities Notices is less than the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth number of Subject Securities offered in the RFO ROFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (such excess Subject Securities being the “Right of First OfferSaleable Securities”), such ROFO Seller shall be entitled to agree to Transfer any or all of the RFO Ordinary Shares by delivering Saleable Securities to a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO OffereeProspective Buyer, in the proportion each case of 13.8.1 and 13.8.2:
(as nearly as may bea) to the number of Ordinary Shares held by them inter se), within one hundred and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 twenty (ten120) Business Days of the expiry of the ROFO Offer Period, subject to any extensions to account for any Mandatory Regulatory Consents to be obtained (such re-offerone hundred and twenty (120)–Business Day period, after which as extended from time such re-offer shall lapse and to time, the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.“Permitted Sale Period”); and
(db) If at a price which is not less than ninety-seven and a half per cent. (97.5%) of the RFO Offeree(s) shall have delivered an RFO Exercise price included in the ROFO Notice and on terms substantially not less favourable to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon Prospective Buyer than the terms set forth out in the RFO ROFO Notice; provided.
13.9 If a Transfer of Subject Securities to which this Clause 13 applies is not completed within the Permitted Sale Period, howeverthe ROFO Notice and all ROFO Offer Notices, that such period ROFO Sale Notices and Excess Securities Notices (if any) issued with respect to the relevant proposed Transfer shall be extended following such date as necessary null and void, and the ROFO Sellers and ROFO AHG Shareholders shall be required to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection comply with such purchase the terms and conditions of this Clause 13 again should the ROFO Sellers wish to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such consummate a Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Subject Securities.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 2 contracts
Sources: Shareholder Agreement (Capital World Investors), Shareholders’ Agreement (Citadel Advisors LLC)
Right of First Offer. (a) Other than Prohibited TransfersProvided that (i) the Lease is in full force and effect, (ii) Tenant is not then in default under the monetary or material non-monetary terms of the Lease, after receipt of notice of default from Landlord and expiration of applicable grace periods (if any); and (iii) Tenant is then in actual physical occupancy of at least one hundred percent (100%) of the Premises, if at any time after on or before March 31, 2011, Landlord determines to offer for lease to the Lock Up Period public a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder portion of the twenty fourth (24th) floor of the Building identified on Exhibit B hereto and consisting of 7,375 rentable square feet (the “RFO OfferorROFO Space”), Landlord shall, before entering into a written lease of the ROFO Space with a third ▇▇▇▇▇ tenant, first send a notice to Tenant (the “Offer Notice”) fully complies stating that Landlord intends to offer for lease all or a portion of the ROFO Space. Tenant shall then have the right, exercisable within ten (10) days after Tenant’s receipt of the Offer Notice, time being of the essence, to notify Landlord in writing of Tenant’s desire to lease the ROFO Space set forth in the Offer Notice on the following terms:
(i) Base Rent $114,312.50 per annum, with annual cumulative increases of 2.5% on January 1st of each year during the term;
(ii) A Work Contribution payable in accordance with paragraph 33 of this Agreement, in the amount of $110,625;
(iii) Additional Rent to be paid in accordance with the Lease, as amended hereby, including but not limited to, Operating Expenses;
(iv) Tenant’s Proportionate Share for the ROFO Space shall be 1.35%;
(v) There shall be no free rent or rent abatement;
(vi) The ROFO Space shall not be subject to re-measurement; and
(vii) The ROFO Space shall be delivered in an “as is” condition (collectively, the “Offer Terms”). If Tenant timely exercises such right, on the date upon which Landlord delivers vacant, broom-clean possession of the ROFO Space to Tenant (the “ROFO Space Inclusion Date”), the ROFO Space shall be added to and included within the Premises upon all of the Offer Terms and, to the extent not in conflict with the Offer Terms, on the terms and conditions set forth in the Lease, as amended hereby (it being understood that if and to the extent of any inconsistency between the Offer Terms and the terms set forth in this Section 3.3; provided that Lease, the Offer Terms shall prevail as to the lease of the ROFO Space). In the event Tenant fails to exercise its right of first offer within such ten (10) day period, Landlord shall have no further obligation to offer the ROFO Space to Tenant for lease, and shall thereafter be free for the remainder of the Term to lease the ROFO Space to any third party at such rent and upon such conditions as Landlord may determine in its sole and absolute discretion and this Article shall be of no force or effect with respect to the ROFO Space. The provisions of this Section 3.3 paragraph 34 shall not apply be of no force and effect from and after April 1 2011, if being agreed that from and after such date, Landlord shall thereafter be free for the remainder of the Term to Permitted Transferslease the ROFO Space to any third party at such rent and upon such conditions as Landlord may determine in its sole and absolute discretion, without first offering said Space to Tenant.
(b) The RFO Offeror shall, prior Time is of the essence with respect to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinprovisions of this Article.
(c) The RFO Offeree(s) collectively shall have With respect to the right ROFO Space, Landlord represents and warrants to purchase Tenant that there are no existing options, rights of first offer and/or rights of first refusal and/or expansion rights and other like rights heretofore granted by Landlord to any other parties (the “Right of First Offer”), any or all including tenants of the RFO Ordinary Shares by delivering a written notice (Building under leases of space in the “RFO Exercise”Building) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from in existence on the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedhereof.
(d) If Promptly after Tenant’s timely exercise of the RFO Offeree(s) right of first offer set forth herein, Landlord and Tenant shall have delivered enter into an RFO Exercise amendment to the RFO Offeror within Lease, as amended hereby, prepared by Landlord confirming the RFO Response Period for all terms upon which Landlord shall lease to Tenant the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) ROFO Space (which terms shall be respectively boundon the Offer Terms), and but the failure to do so shall complete not impair, affect or reduce the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection parties’ obligations with such purchase to be obtained or made, respect to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation lease of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3ROFO Space.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Sublease (Targacept Inc)
Right of First Offer. (a) Other than Prohibited TransfersUpon receipt of the ROFO Notice, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (Company and the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively ROFO Members shall have the right to purchase the ROFO Units on the terms and purchase price set forth in the ROFO Notice in the following order of priority:
(i) the “Right of First Offer”), any or Company shall have the right to purchase all of the RFO Ordinary Shares ROFO Units, by delivering delivering, no later than five Business Days after the Business Day on which the Company received the ROFO Notice, a written notice (the a “RFO ExerciseCompany Acceptance Notice”) to the Proposed ROFO Transferor and the ROFO Members stating the number of ROFO Units it elects to purchase, on the terms (including the purchase price) set forth in the ROFO Notice;
(ii) if the Company declines to exercise the right to purchase the ROFO Units, or exercises such right only in part, each Principal Investor shall have the right to purchase their pro rata (relative to the other Principal Investors) share of the Right of First Offer to the RFO Offeror within 20 (twenty) remaining ROFO Units, by delivering, no later than five Business Days from after the date of deadline for delivery of the RFO a Company Acceptance Notice (the “RFO Response PeriodInitial Principal Investor Acceptance Notice Deadline”), irrevocably stating therein such portion of a written notice (each a “Principal Investor Acceptance Notice”) to the RFO Ordinary Shares as shall be purchasedProposed ROFO Transferor, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof Company and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have other ROFO Members stating the right, but shall not be required, number of ROFO Units it elects to purchase (or cause its wholly-owned Affiliate(s) up to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror relative to the other RFO Offeree(sPrincipal Investors) (or if there is more than one other RFO Offeree, in share of the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter seremaining ROFO Units), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon on the terms (including the purchase price) set forth in the RFO ROFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.and
(eiii) If the RFO Offeree(s) shall if any Principal Investor does not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(dexercise its right pursuant to clause (ii), or together have failed each Principal Investor who exercised its right to deliver RFO Exercises within the RFO Response Period for all purchase ROFO Units pursuant to clause (ii) of the RFO Ordinary Shares as contemplated in Section 3.3(dthis paragraph (each an “Electing Principal Investor”) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty to purchase any remaining ROFO Units (60provided that if more than one Principal Investor validly exercises the right to purchase ROFO Units pursuant to this clause (iii)), the Principal Investors purchasing ROFO Units pursuant to this clause (iii) days thereafter shall have the right to do so on a pro rata basis (relative to each other), by delivering, no later than three Business Days following the Initial Principal Investor Acceptance Notice Deadline (the “Transfer PeriodAdditional ROFO Notice Deadline”), a written notice to dispose the Proposed ROFO Transferor, the Company and the other Principal Investors (an “Additional ROFO Acceptance Notice”) stating the number of ROFO Units (up to all remaining ROFO Units) such Electing Principal Investor elects to purchase, on the terms (including the purchase price) set forth in the ROFO Notice. In the event there are two validly delivered Additional ROFO Acceptance Notices for a total number of remaining ROFO Units in excess of the RFO Ordinary Shares number available, the remaining ROFO Units available for purchase under this subsection shall be allocated between the applicable Principal Investors on a pro rata basis (relative to each other).
(iv) The failure of the Company or a ROFO Member to timely deliver a Company Acceptance Notice, a Principal Investor Acceptance Notice or an Additional ROFO Acceptance Notice, as applicable, shall constitute a waiver of the related rights of first offer under this Section 7.3 only with respect to the applicable Transfer (provided that the failure of a ROFO Member to timely deliver an Additional ROFO Acceptance Notice shall not constitute a waiver of any rights pursuant to a validly delivered Principal Investor Acceptance Notice of such Principal Investor).
(v) If the Company and the ROFO Members shall have, in one the aggregate, exercised their respective rights to purchase all of the ROFO Units, then the Proposed ROFO Transferor shall sell such ROFO Units to the Company and/or the ROFO Members, and the Company and/or the ROFO Members, as the case may be, shall purchase such ROFO Units, within ten Business Days following the earlier of the Additional ROFO Notice Deadline and such date on which the Company and/or the ROFO Members have exercised their respective rights to purchase all of the ROFO Units (or more Transfers thereof without being subject such other date as the Proposed ROFO Transferor and any such purchaser shall agree) (which period may be extended for a reasonable time to the extent reasonably necessary to obtain required approvals or consents from any Governmental Authority). Each applicable counterparty to any sale pursuant to this Section 7.3 shall take all actions as may be reasonably necessary to consummate the sale contemplated by this Section 7.3(b)(v), including entering into customary agreements and delivering customary certificates and instruments and consents as may be deemed necessary or appropriate, provided that no Proposed ROFO Transferor shall be required to make any representations, warranties or covenants in connection therewith, other than customary representations and warranties as to authority, no conflict and ownership of the restrictions ROFO Units to be sold in such transaction.
(vi) If the Company and/or the ROFO Members shall not have collectively elected to purchase all of the ROFO Units within the timeframes set forth in this Article III; provided, however, that Section timeframe set forth in paragraph (iv) such Transfer of above (the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation earliest of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary dates to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided hereinoccur, the RFO Offeror “ROFO Expiration Date”), then, provided the Proposed ROFO Transferor has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying also complied with the provisions of this Section 3.3.
(f) The RFO Offeror shall7.3, upon the Proposed ROFO Transferor may Transfer of the RFO Ordinary Shares, procure the resignation all of such number of directors nominated by itROFO Units to the transferee named in the ROFO Notice, if anyat a price for the ROFO Units not less than that specified in the ROFO Notice and on other substantially similar terms and conditions to those specified in the ROFO Notice, as would be required pursuant for up to Section 2.2 hereof, one hundred and such director shall execute a letter of resignationtwenty days after the ROFO Expiration Date.
Appears in 1 contract
Sources: Limited Liability Company Agreement
Right of First Offer. (aIf the Company proposes to obtain additional financing through the issuance of equity securities or Debt in accordance with the requirements set forth in Section 5.4(b)(iii) Other than Prohibited Transfersof this Agreement, if at for so long as Platinum continues to own any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted TransferUnits, such Transfer Platinum or its designated Affiliate shall be permitted only if such Shareholder entitled to the opportunity to make the first offer (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO NoticePlatinum Offer”) to each other Shareholder (eachthe Company to provide such additional Company financing in the full amount specified by the Company, an “RFO Offeree”), setting forth (i) all on the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase hereinafter described (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but Platinum shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then but if it chooses to do so, it shall exercise the RFO Offeror shall have Right of First Offer within fifteen (15) Business Days after being advised in writing by the right for sixty (60) days thereafter (the “Transfer Period”), to dispose Company of the RFO Ordinary Shares following: (i) that the Company proposes to obtain additional financing through the issuance of equity securities or Debt; (ii) the amount of financing the Company proposes to seek; and (iii) the general use of proceeds of the financing, which may be for general Company purposes. If so requested by the Company, Platinum shall promptly confirm in one writing to the Company that it does not wish to exercise its Right of First Offer. In the event that Platinum makes a Platinum Offer, it will be an irrevocable commitment by Platinum to purchase the equity securities or more Transfers thereof without being Debt of the Company, subject to the Company’s rights hereunder. Except as provided herein, the Company shall not be under any obligation to accept, or to make any counteroffer to, the Platinum Offer or any other offer or offers made by Platinum or its Affiliates in connection with the Right of the restrictions set forth in this Article IIIFirst Offer; provided, however, that the Company will provide Platinum with a copy of any offer (i) such Transfer in the case of the RFO Ordinary Shares equity securities, at a purchase price per Unit that is consummated on terms not more favorable to the purchasers thereof higher than the terms specified per Unit price set forth in the RFO Notice Platinum Offer and (ii) in the RFO Offeror provides written confirmation case of Debt, on terms that are more advantageous to the RFO Offeree(sCompany than those provided in the Platinum Offer (each a “Superior Offer”) it receives during the Company Acceptance Period. Within ninety (90) Business Days following receipt by the Company of the Platinum Offer (the “Company Acceptance Period”), the Company shall notify Platinum whether or not it is electing to accept the Platinum Offer (such notification, if affirmative shall be referred to hereinafter as the “Company Acceptance” and, if negative in whole, the “Company Rejection”). In the event that a Superior Offer is received by the Company, the Company Acceptance Period shall be extended for five (5) Business Days following receipt by Platinum of a copy of any Superior Offer, during which time, Platinum may revise the Platinum Offer in order to match or exceed the terms of the Superior Offer (such terms comply with clause offer, a “Matching Offer”). The Company may only accept a Superior Offer and may not accept any offer received during the Company Acceptance Period, as such Company Acceptance Period may be extended, that provides for (i) hereof prior in the case of equity securities, at a purchase price per Unit that is less than the per Unit price set forth in the Platinum Offer or the Matching Offer, as the case may be and (ii) in the case of Debt, on terms that are less advantageous to the consummation Company than those provided in the Platinum Offer or the Matching Offer, as the case may be (an “Inferior Offer”). The Company Acceptance shall be deemed to be an irrevocable commitment by the Company to sell to Platinum the number of Company equity securities or the amount of Debt which Platinum has offered to purchase on terms substantially as set forth in the Platinum Offer or the Matching Offer or such saleother terms and conditions as are no less favorable to Platinum than those specified in the Platinum Offer or the Matching Offer. During the Company Acceptance Period or upon the first to occur of (i) the waiver by Platinum of the Right of First Offer, (ii) the rejection of the Platinum Offer or the Matching Offer for a Superior Offer or (iii) the lapse of the period during which the Right of First Offer may be exercised by Platinum, the Company may, subject to the limitations of Section 4.4(b) of this Agreement, seek and obtain Company financing from any Person or Persons through the issuance of Company equity securities or Debt; provided that, during the Company Acceptance Period, the Company may only accept Superior Offers and provided further, that if, during the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Company Acceptance Period, as extended as provided hereinthe Company receives a Matching Offer, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of Company may only accept such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Matching Offer.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Black Elk Energy Finance Corp.)
Right of First Offer. (a) Other than Prohibited Transfers, if at If any time after Investor (the Lock Up Period a Shareholder “Transferring Holder”) desires to Transfer (including indirectly by any of their direct or indirect equityholders) any Partnership Securities or shares of Common Stock, or any Series B Preferred Units (i) to address a Regulatory Concern (as defined in the Purchase Agreement), or (ii) pursuant to a Transfer approved by ENLK, in each of (i) and (ii), pursuant to Section 5.05 of the Purchase Agreement (as applicable, the “ROFO Securities”), to a Person that is not a Permitted Transferee of such Transferring Holder (other than pursuant to any Permitted Section 7.5), then each non-transferring Investor (each, a “ROFO Offeree”) shall have a right of first offer over such ROFO Securities, which shall be exercised in the following manner:
(i) The Transferring Holder shall provide the ROFO Offeree with written notice (a “ROFO Notice”) of its desire to Transfer the ROFO Securities. The ROFO Notice shall set forth the number and type of ROFO Securities the Transferring Holder wishes to Transfer, such Transfer the form of consideration to be received in respect thereof and any other terms and conditions material to the sale.
(ii) The ROFO Offeree shall be permitted only if such Shareholder have a period of up to 15 Business Days following receipt of the ROFO Notice (the “RFO OfferorROFO Election Period”) fully complies to give the Transferring Holder a binding written offer (the “ROFO Offer”) to purchase (or, at the option of the ROFO Offeree, to cause one or more of its Affiliates to purchase) all but not less than all of the ROFO Securities described in the ROFO Notice on the terms and subject to the conditions set specified in the ROFO Notice. The ROFO Offer shall include the price per ROFO Security, including the form of consideration in respect thereof (the “Transfer Consideration”) and shall remain open and binding for 15 Business Days or such greater period of time as may be specified in the ROFO Offer.
(iii) If any ROFO Offeree makes a ROFO Offer within the ROFO Election Period and the Transferring Holder accepts such ROFO Offer during the period described in Section 7.4(a)(ii) above, such purchase shall be consummated on the later of (A) a mutually agreed Business Day within 15 days of the date on which the Transferring Holder notifies such ROFO Offeree of such acceptance, and (B) the fifth Business Day following the expiration or termination of all applicable periods under the requirements of the HSR Act or applicable foreign antitrust laws or satisfaction of other applicable legal requirements.
(iv) If no ROFO Offeree makes a ROFO Offer within the ROFO Election Period, or if the Transferring Holder does not accept the ROFO Offer, the Transferring Holder may Transfer all of the ROFO Securities specified in the ROFO Notice at any time within 120 days following the delivery of the ROFO Offer, or if no ROFO Offer was delivered, within 150 days of the delivery of the ROFO Notice (subject to extension as necessary to comply with the requirements of the HSR Act or applicable foreign antitrust laws or other applicable legal requirements) (A) at a price that is not less than 103% of the purchase price specified in the ROFO Offer and on economic terms and conditions that, taken as a whole, are not more favorable to the purchaser than those specified in the ROFO Offer (it being understood and agreed that the purchase price per ROFO Security shall be determined without regard to any agreed upon survival of representations or warranties, covenants, escrows or holdbacks or indemnification obligations that the Transferring Holder may agree to), or (B) if no ROFO Offer was delivered, at a price determined by the Transferring Holder, and on such other terms and conditions that are not more favorable to the purchaser than those specified in the ROFO Notice. Following the expiration of any time periods set forth in this Section 3.3; provided that 7.4(a)(iv), the provisions of Transferring Holder may not Transfer any such ROFO Securities without first following the procedures set forth in this Section 3.3 shall not apply to Permitted Transfers7.4.
(b) The RFO Offeror shall, prior receipt of Transfer Consideration by any Transferring Holder selling ROFO Securities pursuant to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth 7.4 shall be deemed a representation and warranty by such Transferring Holder that: (i) the number of Ordinary Shares proposed such Transferring Holder has full right, title and interest in and to be disposed of (the “RFO Ordinary Shares”), such ROFO Securities; (ii) the proposed purchase price per RFO Ordinary Share, such Transferring Holder has all necessary power and payment authority and other material terms and conditions has taken all necessary actions to sell such ROFO Securities as contemplated by this Section 7.4; and (iii) an irrevocable offer to sell to such ROFO Securities are free and clear of any and all liens, encumbrances and other restrictions (other than the RFO Offeree(s) the RFO Ordinary Shares Transfer restrictions set forth in the RFO Notice at the same price per Ordinary Share herein, and on the same terms and conditions as set forth thereinrestrictions created by any applicable federal or state securities laws).
(c) The RFO Offeree(s) collectively shall have For the right to purchase (the “Right avoidance of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Sharesdoubt, the RFO Offeror and RFO Offeree(s) requirements of this Section 7.4 shall be respectively bound, and shall complete only apply for so long as the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the transfer restrictions set forth in this Article III; provided, however, that (i) such Transfer Section 5.05 of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified Purchase Agreement are in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3effect.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Coordination and Securityholders’ Agreement (Enfield Holdings Advisors, Inc.)
Right of First Offer. (ai) Other than Prohibited TransfersIf a Member (such Member, if at any time after the Lock Up Period a Shareholder “ROFO Transferring Member”) desires to Transfer all or any portion of its Membership Interests to a third party that is not a Member (or an Affiliate thereof) (other than in a Transfer pursuant to Section 3.6(a)), then, prior to commencing a sale process (including providing access to any Permitted physical or electronic data room to any third party) or entering into any binding agreement with respect to such proposed Transfer, such Transfer ROFO Transferring Member shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO ExerciseROFO Notice”) to the Management Committee and each of the other Members (such other Members, the “ROFO Members”) of exercise of the Right of First Offer ROFO Transferring Member’s desire to Transfer such Membership Interests, which ROFO Notice shall specify the RFO Offeror within 20 (twenty) Business Days from Membership Units that the date of delivery of the RFO Notice ROFO Transferring Member desires to Transfer (the “RFO Response PeriodSubject Units”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof purchase price and terms and conditions of Transfer that such ROFO Transferring Member proposes to be purchased by each RFO Offeree paid for such Subject Units (or such Affiliate(s)the “ROFO Price”). Each RFO Offeree ROFO Member shall have the right, but at any time during the period (the “Exercise Period”) that ends at 5:00 p.m. Aurora, Nebraska time on the forty-fifth (45th) calendar day after receipt of the ROFO Notice to give a written notice to the ROFO Transferring Member that such ROFO Member is electing, on the terms and conditions contained in the ROFO Notice (which, for the avoidance of doubt, shall not be requiredonly include Acceptable Terms and Conditions), to purchase its proportionate share of Subject Units (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (calculated based on the number of Ordinary Shares held Membership Units owned by such RFO Offeree ROFO Member as a proportion of the number date of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) ROFO Notice relative to the number of Ordinary Shares held Membership Units owned by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect all ROFO Members as of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days date of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.ROFO Notice)
(da) If at the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary SharesROFO Price (each such notice, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(da “ROFO Offer”), or together have failed (b) at such other price (a “ROFO Counter Price”) as previously agreed to deliver RFO Exercises within the RFO Response Period for all by a majority of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter ROFO Members (the “Transfer PeriodROFO Counter Offer”), to dispose in either case, plus any additional portion of the RFO Ordinary Shares Subject Units such ROFO Member desires to purchase in one excess of its pro-rata share (a “ROFO Over-Allotment Amount”) if other ROFO Members do not exercise all or more Transfers thereof without being subject to any of their rights hereunder. In the restrictions set forth in this Article III; providedevent that the ROFO Transferring Member receives a ROFO Counter Offer from any ROFO Member, however, the ROFO Transferring Member shall have fifteen (15) days to notify all such ROFO Members that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to ROFO Transferring Member either accepts or declines the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such saleROFO Counter Offer; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by itacceptance, if any, of the ROFO Counter Offer, such ROFO Counter Offer shall be treated as would a ROFO Offer hereunder. The right of each ROFO Member to purchase any ROFO Over-Allotment Amount shall be required pursuant based on the relative Membership Unit ownership percentages of all ROFO Members desiring to Section 2.2 hereofpurchase ROFO Over-Allotment Amounts (or in such other manner as all of the ROFO Members who submit ROFO Offers (each, and such director shall execute a letter of resignation“ROFO Buyer”) may agree among themselves).
Appears in 1 contract
Right of First Offer. I. If at any time any Class B Member desires to Transfer any of its Class B Membership Interests to any third Person, other than an Affiliate of such Class B Member or as set forth in 9.5 III. below, prior to offering the Class B Membership Interests to any such third Person, such Class B Member shall first give notice to the other Class B Members (the “Offer Notice”) specifying the price (the “Specified Price”) and other terms (the “Specified Terms”) at and on which such Class B Member is willing to Transfer the Class B Membership Interests.
(a) Other than Prohibited TransfersEach Class B Member (or any Affiliate of any Class B Member designated by it) shall have the right, for a period of 30 calendar days after receipt of an Offer Notice, to inform the transferor Class B Member in writing of its election to purchase the subject Class B Membership Interests at the Specified Price and on the Specified Terms set forth in the Offer Notice (such notice, the “ROFO Notice”). Any ROFO Notice, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfergiven, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfersirrevocable.
(b) The RFO Offeror shallIf more than one Class B Member (or its Affiliate) gives a ROFO Notice to purchase the Class B Membership Interests for the Specified Price on the Specified Terms, prior each such Class B Member (or its Affiliate) will be entitled to acquire that portion of the Class B Membership Interests which is equal to the Transfer product of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i1) the number of Ordinary Shares proposed Class B Membership Interests subject to be disposed of the Offer Notice, multiplied by (the “RFO Ordinary Shares”), (ii2) the proposed fraction, the numerator of which is the Capital Interest of such Class B Member and the denominator of which is the aggregate Capital Interest of all Class B Members that have given a ROFO Notice. If any Class B Member elects not to give a ROFO Notice, each of the other Class B Members may elect to acquire the Class B Membership Interests subject to an Offer Notice not otherwise subject to a ROFO Notice, pro rata as provided in the prior sentence; provided that, if a Class B Member defaults on its obligation to purchase price per RFO Ordinary Sharethe Class B Membership Interest pursuant hereto, and payment and other material terms and conditions and (iii) an irrevocable offer the Class B Member that gave the Offer Notice shall not be required to sell its Class B Membership Interests to the RFO Offeree(s) remaining Class B Members unless all of the RFO Ordinary Shares set forth in Class B Membership Interests are being acquired by the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinremaining Class B Members.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all closing of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise Transfer of the Right of First Offer to Class B Membership Interests covered by any ROFO Notice shall occur no later than 60 days after the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO ROFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (is given or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly later date as may be) be required to the number of Ordinary Shares held by them inter se)obtain any applicable governmental consents or approvals, and or to satisfy any reporting or waiting period under any applicable Legal Requirements, or at such other RFO Offeree(s) may accept by delivery to time as the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedparties agree.
(d) If the RFO Offeree(sright of first offer is exercised, at the closing of the Transfer, (1) each Class B Member which has given a ROFO Notice shall have delivered an RFO Exercise pay (by wire transfer of immediately available United States Dollars to such United States bank accounts as the Class B Member giving the Offer Notice may designate in a written notice to the RFO Offeror within Company and other Class B Members no later than five Business Days prior to the RFO Response Period closing date for all the RFO Ordinary Shares, Transfer pursuant to the RFO Offeror and RFO Offeree(sROFO Notice) shall be respectively bound, and shall complete an amount equal to the sale and purchase product of (i) the cash price of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms Class B Membership Interests set forth in the RFO Offer Notice, multiplied by (ii) the fraction referred to in Section 9.5(I)(c), and (2) the Class B Member that gave the Offer Notice shall take the following actions: (i) such Class B Member shall Transfer to each other Class B Member entitled to purchase, as provided in Section 9.5(I)(c), all right, title and interest in and to the Class B Membership Interests, free and clear of all Encumbrances other than Permitted Encumbrances; provided, however, that (ii) such period Class B Member shall be extended following deemed to have made the representations set forth on Schedule 9 attached hereto to each such other Class B Member and the Company; and (iii) such Class B Member shall take all such further actions and execute, acknowledge and deliver all such further documents that are necessary to effectuate the Transfer of the Class B Membership Interests contemplated by this Section. Upon the closing of such Transfer, (1) all of such Class B Member’s obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer will terminate except those obligations and liabilities accrued through the date of such closing, (2) such Class B Member shall have no further rights as a Member in respect of the Class B Membership Interests which are the subject of such Transfer, and (3) all the rights, obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer shall become the rights, obligations and liabilities of each Person acquiring such Class B Membership Interests.
(a) If the right of first offer is not excersised by the other Class B Members as set forth in 9.5(I) above the transferring Class B Member shall give an Offer Notice to the Class A Members. Each Class A Member (or any Affiliate of any Class A Member designated by it) shall have the right, for a period of 30 calendar days after receipt of an Offer Notice, to inform the transferor Class B Member in writing of its election to purchase the subject Class B Membership Interests at the Specified Price and on the Specified Terms set forth in the ROFO Notice. Any ROFO Notice, if given, shall be irrevocable.
(b) If more than one Class A Member (or its Affiliate) gives a ROFO Notice to purchase the Class B Membership Interests for the Specified Price on the Specified Terms, each such Class A Member (or its Affiliate) will be entitled to acquire that portion of the Class B Membership Interests which is equal to the product of (1) the Class B Membership Interests subject to the Offer Notice, multiplied by (2) the fraction, the numerator of which is the Capital Interest of such Class A Member and the denominator of which is the aggregate Capital Interest of all Class A Members that have given a ROFO Notice. If any Class A Member elects not to give a ROFO Notice, each of the other Class A Members may elect to acquire the Class B Membership Interests subject to an Offer Notice not otherwise subject to a ROFO Notice, pro rata as provided in the prior sentence; provided that, if a Class A Member defaults on its obligation to purchase the Class B Membership Interest pursuant hereto, the Class B Member that gave the Offer Notice shall not be required to sell its Class B Membership Interests to the remaining Class A Members unless all of the Class B Membership Interests are being acquired by the remaining Class A Members.
(c) The closing of the Transfer of the Class B Membership Interests covered by any ROFO Notice shall occur no later than 60 days after the ROFO Notice is given or such later date as necessary may be required to permit all required obtain any applicable governmental consents or approvals, consents or authorizations fromto satisfy any reporting or waiting period under any applicable Legal Requirements, or filings or registrations withat such other time as the parties agree.
(d) If the right of first offer is exercised, any Governmental Authority at the closing of the Transfer, (1) each Class A Member which has given a ROFO Notice shall pay (by wire transfer of immediately available United States Dollars to such United States bank accounts as the Class B Member giving the Offer Notice may designate in connection with such purchase to be obtained or made, a written notice to the extent Company and Class A Members no later than five Business Days prior to the expiration closing date for the Transfer pursuant to the ROFO Notice) an amount equal to the product of (i) the cash price of the RFO Purchase Period reasonably appropriate actions Class B Membership Interests set forth in the Offer Notice, multiplied by (ii) the fraction referred to in Section 9.5(c), and (2) the Class B Member that gave the Offer Notice shall take the following actions: (i) such Class B Member shall Transfer to each Class A Member entitled to purchase, as provided in Section 9.5(c), all right, title and interest in and to the Class B Membership Interests, free and clear of all Encumbrances other than Permitted Encumbrances; (ii) such Class B Member shall be deemed to have been taken by made the RFO Offeree(s) representations set forth on Schedule 9 attached hereto to obtain each such approvals, consents or authorizations, or make such filings or registrationsClass A Member and the Company; and provided (iii) such Class B Member shall take all such further actions and execute, acknowledge and deliver all such further documents that are necessary to effectuate the Transfer of the Class B Membership Interests contemplated by this Section. Upon the closing of such Transfer, (1) all of such Class B Member’s obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer will terminate except those obligations and liabilities accrued through the date of such closing, (2) such Class B Member shall have no further rights as a Member in respect of the Class B Membership Interests which are the subject of such extension Transfer, and (3) all the rights, obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer shall exceed 60 daysbecome the rights, obligations and liabilities of each Person acquiring such Class B Membership Interests.
(e) If the RFO Offeree(sClass A Members (or their Affiliates) shall have not have completed the given ROFO Notices to purchase of all of such Class B Membership Interests offered for sale for the RFO Ordinary Shares Specified Price on the Specified Terms, then thereafter for a period of 180 calendar days the Class B Member that gave the Offer Notice may Transfer the Class B Membership Interests to a third Person for the Specified Price (or a higher price) on the Specified Terms (or better terms to the transferor Class B Member). If such Transfer is not consummated within the RFO Purchase Periodsuch 180-day period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all then any subsequent Transfer by such Class B Member of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing Class B Membership Interests shall again be subject to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions first offer as set forth in this Article Section 9.5.
III; provided. A proposed Transfer between one Class B Member to another Class B Member, howeveror between respective Affiliates of such Class B Members, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms shall not more favorable be subject to the purchasers thereof than the terms specified right of first offer as set forth in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.39.5.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Ormat Technologies, Inc.)
Right of First Offer. (ai) Other than Prohibited TransfersDuring any period between the expiration of the Restricted Period and the consummation of a Qualified Public Offering, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Holder (the “RFO OfferorTransferring Holder”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply wishes to Permitted Transfers.
(b) The RFO Offeror shall, prior to the effect a Transfer of any Ordinary Shares to which this Section 3.3 appliesits Common Shares, give then such Transferring Holder shall first deliver a written notice (the “RFO ROFO Notice”) to each other Shareholder all Holders whose Proportionate Percentage is at least 5% (each, an the “RFO OffereeROFO Offerees”), setting forth (i) . Such ROFO Notice shall disclose the number of Ordinary Common Shares proposed to be disposed of Transferred (the “RFO Ordinary Offered Shares”)) and the material terms of any offer the Transferring Holder has received or is contemplating, if applicable.
(ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively Each ROFO Offeree shall have the right to purchase (the “Right of First Offer”)) to provide the Transferring Holder, any or within 45 days of the date of the ROFO Notice, an irrevocable written offer to acquire all of the RFO Ordinary Offered Shares, upon the price, terms and conditions on which such ROFO Offeree is willing to purchase the Offered Shares by delivering a written notice (the “RFO ExerciseProposed Offer”).
(iii) The Transferring Holder, in its sole discretion, may elect to accept any Proposed Offer by delivering an irrevocable written notice of acceptance (the “ROFO Acceptance Notice”) of exercise of the Right of First Offer to the RFO Offeror ROFO Offerees and the Company within 20 (twenty) Business Days from 60 days after the date of delivery of the RFO ROFO Notice (the “RFO Response ROFO Acceptance Period”), irrevocably stating therein ; provided that (A) if such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as Transferring Holder receives a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is Proposed Offer from more than one other RFO ROFO Offeree, such Transferring Holder may only accept the Proposed Offer with the most favorable terms and conditions (including price) in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)its reasonable discretion, and (B) if such Transferring Holder (x) receives Proposed Offers with equivalent terms (including price, conditions and other RFO Offeree(sterms and conditions) may from more than one ROFO Offeree and (y) elects to accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days one of such re-offerProposed Offers, after which time such re-offer Transferring Holder shall lapse accept all such Proposed Offers with equivalent terms and the re-offer for Offered Shares shall be allocated pro rata among such Remaining RFO Ordinary Shares will be deemed to have been declinedROFO Offerees based on their respective ROFO Proportionate Percentages.
(div) If The ROFO Offerees purchasing the RFO Offeree(s) shall have delivered an RFO Exercise Common Shares pursuant to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(sthis Section 4(c) shall be respectively boundentitled to require the Transferring Holder to provide representations and warranties regarding (A) its power, authority and shall complete legal capacity to enter into such Transfer of Common Shares; (B) valid right, title and interest in such Common Shares and the sale Transferring Holder’s ownership of such Common Shares; (C) the absence of any Encumbrances on such Common Shares; and purchase (D) the absence of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; providedany violation, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations fromdefault, or filings acceleration of any agreement or registrations with, any Governmental Authority in connection with instrument pursuant to which such purchase to be obtained Transferring Holder or made, to the extent prior to assets of such Transferring Holder are bound as the expiration result of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 dayssale.
(ev) If Subject to any Tag-Along Rights, after the RFO Offeree(s) shall not have completed the purchase of all termination of the RFO Ordinary Shares within the RFO Purchase ROFO Acceptance Period, as extended as provided the Transferring Holder may, during the 120 day period following the ROFO Acceptance Period, Transfer (or enter into an agreement to Transfer and at any time Transfer in Section 3.3(d), or together have failed to deliver RFO Exercises within accordance with such agreement) the RFO Response Period for all of Offered Shares at and upon the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, price and other material terms and conditions that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not are more favorable to the purchasers thereof Transferring Holder than the terms specified most favorable Proposed Offer that the Transferring Holder received (such Transfer, the “Permitted ROFO Transfer”). If the Transferring Holder has not consummated a Permitted ROFO Transfer (or has not entered into an agreement with respect thereto) within such 120 day period, the Transferring Holder shall not thereafter Transfer any Common Shares (including such Offered Shares), whether pursuant to a Proposed Offer or otherwise, without first providing a new ROFO Notice to the ROFO Offerees in the RFO Notice manner provided above, and such proposed Transfer shall again be subject to the requirements of this Section 4(c).
(iivi) the RFO Offeror provides written confirmation closing of the sale of any Common Shares pursuant to this Section 4(c), the Transferring Holder shall deliver at such closing, against payment of the purchase price therefor, certificates representing those Common Shares to be sold, duly endorsed for transfer or accompanied by duly endorsed stock powers, and evidence of the absence of Encumbrances and adverse claims with respect thereto and of such other matters as are deemed necessary by the Company for the proper Transfer of such Common Shares on the books of the Company.
(vii) Notwithstanding anything to the RFO Offeree(scontrary in this Agreement, this Section 4(c) that such terms comply with clause shall not apply to (iA) hereof prior to the consummation Permitted Transfers, (B) Transfers of such sale; and provided furtherCommon Shares made in a Qualified Public Offering, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from(C) Transfers of Common Shares made by Dragged Holders in a Drag-Along Transaction, or filings or registrations with, any Governmental Authority (D) Transfers of Common Shares made in connection with such Transfers to be obtained or made, to the extent prior to the expiration exercise of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Tag-Along Rights.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited TransfersPursuant to the Memorandum Opinion and Order of the Federal Communications Commission (the "FCC") adopted on June 16, if at any time after 2000 in connection with the Lock Up Period a Shareholder desires merger of GTE and ▇▇▇▇ Atlantic Corporation (the "FCC ORDER"), GTE and its Affiliates have agreed, in the circumstances therein described, and subject to Transfer other than pursuant the terms and conditions thereof and to any Permitted Transfermodification made by the FCC thereto or any waivers granted by the FCC with respect thereto, to offer shares of Class B Common Stock to Genuity prior to offering to sell such Transfer shares (or any shares into which they have been converted) to any other Person. In the event GTE and its Affiliates are required to offer shares of Class B Common Stock to Genuity under the FCC Order, GTE and its Affiliates shall be permitted only if so offer such Shareholder (the “RFO Offeror”) fully complies shares, and Genuity may accept such offer and purchase such shares, in accordance with the terms procedures, for the price, and upon payment of the consideration as set forth in this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers5.1.
(b) In the event GTE and its Affiliates are required to offer shares of Class B Common Stock to Genuity, they shall notify Genuity in writing at the address set forth in Section 6.5 hereof (a "FIRST OFFER NOTICE") of the number of shares of Class B Common Stock being offered and of the offer price (determined as hereinafter set forth as of a date reasonably proximate to the date of the First Offer Notice). The RFO Offeror shallFirst Offer Notice shall set forth in reasonable detail the calculation of the offer price as of such reasonably proximate date. Genuity shall have 90 days from the date that it receives the First Offer Notice to notify GTE and its Affiliates at the addresses set forth in Section 6.5 of its intention to accept the offer as to all the shares of Class B Common Stock covered thereby or to reject the offer (without prejudice to Genuity's right to offer a lower price or to offer to purchase fewer shares). In the event Genuity does not accept the offer as to all the shares of Class B Common Stock covered thereby, GTE and its Affiliates shall thereafter be free to dispose of such shares in such manner as they choose (subject to compliance with applicable law, including the FCC Order) without interference or objection from Genuity. In the event that Genuity elects to so exercise its rights, Genuity shall have 180 days from the date that it received the First Offer Notice to make any financial or other arrangements and to consummate the purchase of all of the offered shares of Class B Common Stock pursuant to the First Offer Notice at the offer price, recalculated as of a date (the "PRICING DATE") that is five business days prior to the Transfer closing date of any Ordinary Shares to which this Section 3.3 appliesthe purchase and sale of the shares as hereinafter set forth. Such offer price shall be payable, give written notice (“RFO Notice”) to each other Shareholder (eachat Genuity's option, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)in cash, (ii) the proposed purchase price per RFO Ordinary Shareby delivery by Genuity of an unsubordinated, marketable debt instrument of Genuity (which shall be guaranteed or co-executed by Genuity's principal operating subsidiaries) with a fair market value equal to its face amount (which shall be equal to such offer price) and payment and other material terms and conditions and which shall bear interest at a commercially reasonable rate, comparable to rates under similar instruments issued by companies with debt ratings comparable to Genuity, with a commercially reasonable term for repayment, or (iii) an irrevocable offer part in cash and part by delivery of such a debt instrument. In the event that Genuity fails to sell to consummate the RFO Offeree(s) the RFO Ordinary Shares purchase as set forth in the RFO Notice at previous sentence, GTE and its Affiliates shall thereafter be free to dispose of such shares in such manner as they choose (subject to compliance with applicable law, including the same price per Ordinary Share and on the same terms and conditions as set forth thereinFCC Order) without interference or objection from Genuity.
(c) The RFO Offeree(s) collectively shall have the right to price payable by Genuity upon consummation of a purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as and sale under this Section 5.1 shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.lesser of:
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer the fair market value of the RFO Ordinary Shares is consummated shares on terms not more favorable to an As Converted Basis as of the purchasers thereof than Pricing Date, as determined by a nationally recognized independent investment banker selected jointly by Genuity and GTE, based upon the terms specified in Average Closing Price of the RFO Notice and Class A Common Stock; and
(ii) the RFO Offeror provides written confirmation to the RFO Offeree(s(1) that such terms comply with clause (i) hereof prior to the consummation for any shares of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority Class B Common Stock in connection with such Transfers to be obtained or made, to the extent prior to the expiration excess of the Transfer Period reasonably appropriate actions have been taken by Ten Percent Amount, the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end S&P Amount with respect thereto as of the Transfer PeriodPricing Date, as extended as provided hereinand (2) for any shares of Class B Common Stock constituting a part of the Ten Percent Amount, the RFO Offeror has not completed the Transfer Market Value thereof as of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Pricing Date.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Subscription and Recapitalization Agreement (Genuity Inc)
Right of First Offer. (a) Other than Prohibited Transfers6.1 Except as otherwise provided in this Amended Agreement or upon the mutual agreement of the Shareholders, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided Shareholders agree that the provisions of this Section 3.3 they shall not apply to Permitted Transfers.
sell, give, encumber, pledge or otherwise transfer, assign or dispose of either voluntarily or by operation of law, all or any part of their shares in VisEra Cayman and/or withdraw from VisEra Cayman within the first three (b3) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days years from the date of delivery incorporation of VisEra Taiwan, unless VisEra Cayman has completed an Initial Public Offering in any jurisdiction, at which time this provision shall terminate.
6.2 The Shareholders agree that they will not sell, give, encumber, pledge or otherwise transfer, assign or dispose of, either voluntarily or by operation of law, all or any part of the RFO Notice stock which either of them now owns or may hereafter acquire in VisEra Cayman without first offering such stock to the other Shareholder as provided herein.
6.3 After three (3) years from the date of incorporation of VisEra Taiwan:
(a) If either initial Shareholder desires to withdraw from VisEra Cayman, the withdrawing Shareholder shall first provide the non-withdrawing Shareholder with written notice of its intention to withdraw and shall offer (the “RFO Response PeriodOffer”)) its shares to the non-withdrawing Shareholder, irrevocably stating therein such portion of whereupon the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more whollynon-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree withdrawing Shareholder shall have the irrevocable first right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares exercisable within thirty (30) days thereafter upon of the terms withdrawing Shareholder to so withdraw, to purchase the entire equity interest of the withdrawing Shareholder in VisEra Cayman at a price per share equal to the proportionate Book Value Per Share (in the aggregate, the “Offer Price”). For purposes of this Amended Agreement the “Book Value Per Share” shall mean the book value set forth in VisEra Cayman’s most recent quarterly financial statements, defined in accordance with the RFO Notice; providedROC Generally Accepted Accounting Principles, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken divided by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If number of shares of common stock of VisEra Cayman on the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation date of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3financial statements.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Shareholders’ Agreement (Omnivision Technologies Inc)
Right of First Offer. (a) Other than Prohibited TransfersSubject to Section 4.1 and Section 7.1, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transferand except as otherwise allowed under Section 4.2, such Transfer shall be permitted only if such no Shareholder (the “RFO OfferorTransferor”) fully complies with may, at any time, Transfer any Equity Securities legally or beneficially held by it, except pursuant to the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.following provisions:
(ba) The RFO Offeror shall, prior Prior to the consummating any such Transfer of any Ordinary Shares to which this Section 3.3 appliesthe Equity Securities, give the Transferor shall deliver a written notice (the “RFO Offer Notice”) to each other Shareholder (each, an the “RFO OffereeOfferees”), setting forth (i) its bona fide intention to Transfer Equity Securities to a third party, the number of Ordinary Shares proposed Equity Securities to be disposed of Transferred (the “RFO Ordinary Subject Shares”), the price at which such Transferor wishes to sell the Subject Shares (ii) the proposed purchase price per RFO Ordinary Share“Offer Price”), and payment and any other material terms and conditions and of the offer.
(iiib) The Offer Notice shall constitute, for a period of 15 days from the date on which it shall have been deemed given, an irrevocable and exclusive offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice each Offeree (or any direct or indirect wholly-owned Subsidiary designated by an Offeree), at the same price per Ordinary Share Offer Price, a portion of the Subject Shares not greater than the proportion that the number of Equity Securities owned by such Offeree (and on all Affiliates thereof) bears to the same terms total number of Equity Securities owned by all the Offerees (and conditions as set forth thereinAffiliates thereof).
(c) The RFO Offeree(s) collectively shall have the right to purchase Each Offeree (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one designated direct or more indirect wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(sSubsidiary thereof) may accept the offer set forth in an Offer Notice by delivery giving notice to the RFO Offeror Transferor, prior to the expiration of an RFO Exercise in respect such offer, specifying the maximum number of the relevant Remaining RFO Ordinary Subject Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and that the re-offer for such Remaining RFO Ordinary Shares will be deemed Offeree wishes to have been declinedpurchase.
(d) If one or more Offerees do not agree to purchase all of the RFO Offeree(sSubject Shares to which such Offerees are entitled (such shares not purchased, the “Offeree Remaining Shares” and together with Offeree Remaining Shares of all other Offerees, the “Aggregate Remaining Shares”), the Transferor shall promptly so notify each Offeree that has agreed to purchase all of the Subject Shares so entitled (each a “Second Round Offeree”), such notice to constitute an offer to sell, irrevocable for fifteen (15) shall have delivered an RFO Exercise days, to each such Offeree, at the Offer Price, a portion of the Aggregate Remaining Shares not greater than the proportion that the number of Equity Securities owned by such the Second Round Offeree bears to the RFO Offeror within the RFO Response Period for total number of Equity Securities owned by all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon Second Round Offerees. Each Second Round Offeree shall notify the terms set forth in the RFO Notice; providedTransferor, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of such offer, specifying the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) number of Aggregate Remaining Shares that such Offeree agrees to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 dayspurchase.
(e) If the RFO Offeree(s) shall not have completed Offerees in the aggregate agree to purchase of any or all of the RFO Ordinary Subject Shares pursuant to this Section 4.3, they shall pay in cash or immediately available funds for and the Transferor shall deliver valid title to, free and clear of any Lien, such Subject Shares, subject to receipt of any necessary or advisable third party approvals or any Governmental Approvals, within fifteen (15) days following completion of the RFO Purchase Period, as extended as provided procedures set forth in Section 3.3(d), subsection (b) and (d) hereof.
(f) If the offers made by the Transferor to the Offerees pursuant to subsections (b) and (d) hereof expire without an agreement by one or together have failed more Offerees to deliver RFO Exercises within the RFO Response Period for purchase all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise Subject Shares, the Right of First Offer, then the RFO Offeror Transferor shall have the right for sixty (60) days thereafter to enter into a definitive agreement with respect to such Transfer and ninety (90) days to effect the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary balance of the Subject Shares is consummated on to any third party or parties, for cash, at a price not less than the Offer Price, and upon terms not otherwise more favorable to the purchasers thereof transferee or transferees than the terms those specified in the RFO Notice Offer Notice, subject to the execution and delivery by such third party of an assignment and assumption agreement, in form and substance satisfactory to the other Shareholders, pursuant to which such third party shall assume all of the obligations of a party pursuant to or under this Agreement. In the event such Transfer is not consummated within such ninety (90) day period, the Transferor shall not be permitted to sell its Equity Securities pursuant to this Section 4.3 without again complying with each of the requirements of this Section 4.3; provided, that such ninety (90) day period should be extended automatically as necessary (i) to apply for and obtain any Governmental Approvals that are required to consummate such Transfer, so long as the Transferor is making good faith efforts to obtain such Governmental Approvals as soon as practicable in accordance with applicable Law and (ii) in the RFO Offeror provides written confirmation event that Section 4.4, 4.5, 4.6 or 4.7 applies, to complete the RFO Offeree(s) that procedure as provided therein. If there is such terms comply with clause (i) hereof prior to extension, the consummation relevant period will end on the fifth Business Day following the receipt of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty Approvals.
(30g) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the The provisions of this Section 3.3.
(f) The RFO Offeror shall4.3 shall continue to be effective following the completion of an IPO; provided that, upon following the Transfer completion of the RFO Ordinary SharesIPO, procure (i) this Section 4.3 shall not apply to any sale of any Equity Securities on the resignation primary securities exchange or quotation system by or through which such Equity Securities are traded, by any Management Member in an amount generating gross sale proceeds to such Management Member of such number of directors nominated by itnot more than US$1.0 million during any twelve-month period, and (ii) if any, as the proposed Transfer would be required a block trade or otherwise on the open market (whether pursuant to Section 2.2 hereofRule 144 or otherwise), and such director shall execute including without limitation a letter of resignation.block trade to
Appears in 1 contract
Sources: Shareholders Agreement (Yahoo Inc)
Right of First Offer. (a) Other than Prohibited TransfersPursuant to the order of the Federal Communications Commission (the "FCC") issued on June 16, if at any time after 2000 in connection with the Lock Up Period a Shareholder desires merger of GTE and ▇▇▇▇ Atlantic Corporation (the "FCC ORDER"), GTE and its Affiliates have agreed, in the circumstances therein described, and subject to Transfer other than pursuant the terms and conditions thereof and to any Permitted Transfermodification made by the FCC thereto or any waivers granted by the FCC with respect thereto, to offer shares of Class B Common Stock to Genuity prior to offering to sell such Transfer shares (or any shares into which they have been converted) to any other Person. In the event GTE and its Affiliates are required to offer shares of Class B Common Stock to Genuity under the FCC Order, GTE and its Affiliates shall be permitted only if so offer such Shareholder (the “RFO Offeror”) fully complies shares, and Genuity may accept such offer and purchase such shares, in accordance with the terms procedures, for the price, and upon payment of the consideration as set forth in this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers5.1.
(b) In the event GTE and its Affiliates are required to offer shares of Class B Common Stock to Genuity, they shall notify Genuity in writing at the address set forth in Section 6.5 hereof (a "FIRST OFFER NOTICE") of the number of shares of Class B Common Stock being offered and of the offer price (determined as hereinafter set forth as of a date reasonably proximate to the date of the First Offer Notice). The RFO Offeror shallFirst Offer Notice shall set forth in reasonable detail the calculation of the offer price as of such reasonably proximate date. Genuity shall have 90 days from the date that it receives the First Offer Notice to notify GTE and its Affiliates at the addresses set forth in Section 6.5 of its intention to accept the offer as to all the shares of Class B Common Stock covered thereby or to reject the offer (without prejudice to Genuity's right to offer a lower price or to offer to purchase fewer shares). In the event Genuity does not accept the offer as to all the shares of Class B Common Stock covered thereby, GTE and its Affiliates shall thereafter be free to dispose of such shares in such manner as they choose (subject to compliance with applicable law, including the FCC Order) without interference or objection from Genuity. In the event that Genuity elects to so exercise its rights, Genuity shall have 180 days from the date that it received the First Offer Notice to make any financial or other arrangements and to consummate the purchase of all of the offered shares of Class B Common Stock pursuant to the First Offer Notice at the offer price, recalculated as of a date (the "PRICING DATE") that is five business days prior to the Transfer closing date of any Ordinary Shares to which this Section 3.3 appliesthe purchase and sale of the shares as hereinafter set forth. Such offer price shall be payable, give written notice (“RFO Notice”) to each other Shareholder (eachat Genuity's option, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)in cash, (ii) the proposed purchase price per RFO Ordinary Shareby delivery by Genuity of an unsubordinated, marketable debt instrument of Genuity (which shall be guaranteed or co-executed by Genuity's principal operating subsidiaries) with a fair market value equal to its face amount (which shall be equal to such offer price) and payment and other material terms and conditions and which shall bear interest at a commercially reasonable rate, comparable to rates under similar instruments issued by companies with debt ratings comparable to Genuity, with a commercially reasonable term for repayment, or (iii) an irrevocable offer part in cash and part by delivery of such a debt instrument. In the event that Genuity fails to sell to consummate the RFO Offeree(s) the RFO Ordinary Shares purchase as set forth in the RFO Notice at previous sentence, GTE and its Affiliates shall thereafter be free to dispose of such shares in such manner as they choose (subject to compliance with applicable law, including the same price per Ordinary Share and on the same terms and conditions as set forth thereinFCC Order) without interference or objection from Genuity.
(c) The RFO Offeree(s) collectively shall have the right to price payable by Genuity upon consummation of a purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as and sale under this Section 5.1 shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.lesser of:
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer the fair market value of the RFO Ordinary Shares is consummated shares on terms not more favorable to an As Converted Basis as of the purchasers thereof than Pricing Date, as determined by a nationally recognized independent investment banker selected jointly by Genuity and GTE, based upon the terms specified in Average Closing Price of the RFO Notice and Class A Common Stock; and
(ii) the RFO Offeror provides written confirmation to the RFO Offeree(s(1) that such terms comply with clause (i) hereof prior to the consummation for any shares of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority Class B Common Stock in connection with such Transfers to be obtained or made, to the extent prior to the expiration excess of the Transfer Period reasonably appropriate actions have been taken by Ten Percent Amount, the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end S&P Amount with respect thereto as of the Transfer PeriodPricing Date, as extended as provided hereinand (2) for any shares of Class B Common Stock constituting a part of the Ten Percent Amount, the RFO Offeror has not completed the Transfer Market Value thereof as of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Pricing Date.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Subscription and Recapitalization Agreement (Genuity Inc)
Right of First Offer. (a) Other than Prohibited TransfersDuring the period commencing from the date hereof and ending on the date of an Initial Public Offering of KMOC Common Stock, if at any time after the Lock Up Period a Shareholder BFTC desires to Transfer sell shares of KMOC Common Stock other than pursuant to any Permitted Transferan Initial Public Offering, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the Articles VII or VIII hereof or pursuant to existing tag along or drag along provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, BFTC may be subject. BFTC shall first give written notice (“RFO a "Transfer Notice”") to KMOC, Waldo and each other Shareholder (each, an “RFO Offeree”), setting forth Original Noteholder containing (i) the number of Ordinary Shares shares of KMOC Common Stock proposed to be disposed of transferred (the “RFO Ordinary "Offered Shares”"), (ii) the proposed purchase price per RFO Ordinary Share(the "First Offer Price") which BFTC proposes to be paid for the Offered Shares, and payment and other material terms and conditions and (iii) an irrevocable offer to sell all of the Offered Shares in the following order of priority: first to KMOC; then, if and to the RFO Offeree(sextent that KMOC does not elect to purchase all of the Offered Shares, pro rata to each Original Noteholder on the basis of the Principal amount of Investor Notes held by such Original Noteholder; and lastly, to Waldo to the extent that there remain Offered Shares which neither KMOC nor the Original Noteholders elect to purchase.
(b) KMOC, Waldo and the RFO Ordinary Original Noteholders (collectively. the "Offerees") shall have a period of 30 days after the date of receipt of the Transfer Notice (the "Response Period") to accept the offer made pursuant to the Transfer Notice to purchase all of the Offered Shares set forth at the First Offer Price by delivering written notice of acceptance to BFTC within the Response Period; provided, however, that in order for this option to be deemed exercised prior to the end of the Response Period, BFTC shall have received acceptances from the Offerees (the "Accepting Offerees") to purchase shares which in the RFO Notice at aggregate must be greater than or equal to the same price per Ordinary Share and on number of shares offered for sale in the same terms and conditions as set forth thereinTransfer Notice.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all closing of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise sale of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Offered Shares will be deemed held at KMOC's principal office in New York on a date mutually agreed upon by the Accepting Offerees and BFTC which is not less than 10 days nor more than 50 days after the end of the Response Period. At the closing, the Offerees will deliver the consideration in accordance with the terms of the offer set forth in the Transfer Notice, and BFTC will deliver the Offered Shares to have been declinedthe Offerees, duly indorsed for transfer, free and clear of all liens, claims and encumbrances.
(d) If If, at the RFO Offeree(s) shall end of the Response Period, the Offerees have delivered an RFO Exercise not given notice of their decision to purchase all of the RFO Offeror within the RFO Response Period for all the RFO Ordinary Offered Shares, the RFO Offeror and RFO Offeree(s) then BFTC shall be respectively bound, and shall complete entitled for a period of 90 days beginning the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to day after the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of to sell the RFO Ordinary Offered Shares as contemplated in Section 3.3(d) or declined in writing to exercise at a price not lower than the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated Offer Price and on terms not more favorable to the purchasers transferee than were contained in the Transfer Notice. Promptly after any sale pursuant to this Section 9.3, BFTC shall notify KMOC of the consummation thereof than and shall furnish such evidence of the completion (including time of completion) of such sale and of the terms specified in the RFO Notice and thereof as KMOC may request.
(iie) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided furtherIf, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Periodany such 90-day period provided for in this Section 9.3, as extended as provided herein, the RFO Offeror BFTC has not completed the Transfer sale of the RFO Ordinary Offered Shares, the RFO Offeror BFTC shall no longer be permitted to dispose sell any of such RFO Ordinary Offered Shares pursuant to this Section 9.3 without again fully complying with the provisions of this Section 3.33.2 and all the restrictions on sale, transfer, assignment or other disposition contained in this Agreement shall again be in effect.
(f) The RFO Offeror shallNotwithstanding the foregoing, upon in the Transfer event that the Accepting Offerees fail to close the purchase of all of the RFO Ordinary SharesOffered Shares on the date mutually agreed upon by the Accepting Offerees and BFTC, procure BFTC shall be entitled, for a period of 120 days from the resignation closing date originally agreed upon, to sell the Offered Shares at any reasonably negotiated price to any third party without having to further comply with the provisions of such number this Section 9.3; provided, however, that if the failure to close the purchase of directors nominated all of the Offered Shares on the date mutually agreed upon by it, if any, as would be required the Accepting Offerees and BFTC was due to the failure of an Accepting Offeree to close the purchase of the amount of Offered Shares it agreed to purchase pursuant to Section 2.2 hereof9.3(b), the other Accepting Offerees may allocate among themselves, in the order of priority set forth in Section 9.3(a)(iii), such remaining Offered Shares for which financing was not obtained and such director shall execute have a letter period of resignation10 additional days from the originally agreed upon closing date to effectuate the purchase of all of the Offered Shares before the provisions of this Section 9.3(f) shall apply.
Appears in 1 contract
Sources: Voting and Transfer Agreement (Khanty Mansiysk Oil Corp)
Right of First Offer. (ai) Other than Prohibited TransfersSubject to subsection (vii) below, if at any time after the Lock Up Period a Shareholder desires Common Holder desiring to Transfer other than pursuant transfer, prior to any Permitted TransferSeparation Event, such Transfer shall be permitted only if such Shareholder Investment Units or Common Stock, whether held separately or as part of one or more Investment Units and after a Separation Event any Common Stock (the “RFO Offeror”) fully complies with the terms hereinafter for purposes of this Section 3.31(b) only, the "Securities"), held by such Common Holder (the "Seller") shall give written notice (the "Sales Notice") to the other Common Holders that the Seller desires to effect such a transfer (a "Sale") and setting forth the number of Investment Units or shares of Common Stock proposed to be transferred by the Seller.
(ii) The receipt of the Sales Notice by each other Common Holder party to this Shareholders Agreement shall constitute an offer (the "Offer") by the Seller to sell to such Common Holder or group of Common Holders for cash the Securities subject to the Sale, subject to the Seller's approval of the terms and conditions of the Bid (as defined below). Each Common Holder, or any group of one or more Common Holders, receiving an Offer shall have a 15-day period (the "Order Period") in which to give a written notice (a "Bid") to the Seller prior to the expiration of such 15-day period, which written notice shall set the price per Security that such Common Holder or group of Common Holders proposes to pay (the "Proposed Sales Price") and such other terms and conditions it or they propose with respect to the Sale; provided that provided, however, a Bid must be for all of the Securities the Seller proposes to transfer as stated in the Sales Notice.
(iii) Upon the receipt of all Bids, if any, the Seller shall have the right to solicit offers for the Securities subject to the Sale from any non-affiliated third-party (a "Third-Party Offer") for a period of 90 days from the date the Order Period expires. To the extent the Seller receives a Third-Party Offer and such Third-Party Offer contains a Proposed Sales Price in excess of the highest Sales Price received by Seller pursuant to the Bids made by the Common Holders or group of Common Holders, then Seller shall have the right to sell the Securities to the Third-Party pursuant to its Offer. If no Bids are delivered during the Order Period then the Seller shall be entitled to accept, in its sole discretion, any Third-Party Offer it so chooses. If such sale pursuant to a Third-Party Offer is not consummated within 120-days from receipt of the Third-Party Offer, and no Bids of Common Holders are accepted by the Seller within 10 days following the expiration of the 90-day period described in the first sentence of this subparagraph (iii), then the provisions of this Section 3.3 1(b) shall not apply be reinstated as to Permitted Transfersany other transfers proposed to be made by the Seller.
(biv) The RFO Offeror shall, prior Common Holders or group of Common Holders providing a Bid to the Transfer Seller during the Order Period as to all of any Ordinary Shares the Securities subject to the Sale, and which this Section 3.3 appliesBid is accepted by the Seller, give shall be required to purchase and pay for all the Securities accepted pursuant to their Bid within a 30-day period from the date on which the buying Common Holder (or group of Common Holders) receives written notice (“RFO Notice”) of the Seller's acceptance of the Bid; provided that if the purchase and sale of such Securities is subject to each other Shareholder (eachany prior regulatory approval, an “RFO Offeree”), setting forth (i) the number time period during which such purchase and sale may be consummated shall be extended until the expiration of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinfive Business Days after all such approvals shall have been received.
(cv) The RFO Offeree(s) collectively shall have Subject to the right to purchase (the “Right transfer restrictions of First Offer”Section 1(a)(ii), any the Seller may transfer Investment Units or all shares in accordance with subsection (b)(iii) for consideration other than cash to an unaffiliated third-party only if the Seller has first obtained and delivered to each of the RFO Ordinary Shares by delivering a written notice (Common Holders an opinion of an independent investment banking firm of national standing indicating that the “RFO Exercise”) of exercise fair market value of the Right of First Offer per share non-cash consideration that the Seller proposes to accept as consideration for such Investment Units or shares, together with any per share cash consideration, is at least equal to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, highest proposed Sale Price received by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof Seller pursuant to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered Bids made by the RFO Offeror to the other RFO Offeree(s) (Common Holders or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number group of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedCommon Holders.
(dvi) If Notwithstanding any provision of this Section 1(b), no action may be taken by the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary SharesSeller, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete other Common Holders or the sale and purchase Company that would cause a violation of the RFO Ordinary Shares within thirty provisions of Section 2.
(30vii) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period The Company shall be extended following such date as take all reasonable steps necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority ensure application is made for the appropriate permissions from the Bermuda authorities in connection with such purchase to be obtained or made, to the extent any Transfer complying with this Agreement. The Company hereby acknowledges that no prior to the expiration approval of the RFO Purchase Period reasonably appropriate actions have been taken by Bermuda Monetary Authority is necessary for any Transfer between Persons who are designated as non-residents of Bermuda for the RFO Offeree(s) to obtain such approvalspurposes of the Exchange Control Act, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days1972.
(eviii) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the The provisions of this Section 3.3.1(b) shall not apply to:
(fA) The RFO Offeror shall, upon the a Transfer of shares of Common Stock to an Affiliate of the RFO Ordinary Shares, procure the resignation Seller;
(B) a Transfer of such number shares of directors nominated Common Stock to another Common Holder;
(C) a Transfer of Investment Units to a Common Holder holding Investment Units;
(D) a Transfer by itone or more Common Holders of a majority of all shares of Common Stock (and, if anyprior to a Separation Event, as would be Investment Units) then outstanding to any Person or Persons;
(E) a Transfer required by the provisions of Section 1(c) or Section 2;
(F) a Transfer permitted by the provisions of Section 1(d);
(G) a Transfer pursuant to Section 2.2 hereofan effective registration statement with respect to the Common Stock to be transferred; or
(H) a Transfer on or after June 12, and such director shall execute a letter of resignation.2002; or
Appears in 1 contract
Right of First Offer. Each Lender must provide PW Partners and KLIM with ten (a10) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, Business Days prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) of an intention to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), assign any or all of its Loans and/or Term Commitments and the RFO Ordinary Shares by delivering a written notice terms of such proposed assignment. PW Partners and KLIM shall have no less than five (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty5) Business Days from the date of delivery of such notice to respond to and/or accept such Lender’s proposed assignment on the RFO Notice (the “RFO Response Period”)terms offered; provided that if both PW Partners and KLIM accept such Lender’s proposed assignment, irrevocably stating therein such portion of the RFO Ordinary Shares as each shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof entitled to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, accept up to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number amount of Ordinary Shares held by Loans it holds at such RFO Offeree as a proportion time) of the number of Ordinary Shares held by all RFO Offerees)proposed assignment. Neither PW Partners nor KLIM shall be obligated to purchase any such Loans and/or Term Commitments. To the extent any RFO Offeree does PW Partners or KLIM has not wish to purchase responded within five (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten5) Business Days of receiving such re-offernotice, after which time such re-offer PW Partners and/or KLIM shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If declined to purchase such Loans and/or Term Commitment. To the RFO Offeree(s) shall have delivered an RFO Exercise extent PW Partners and/or KLIM do not agree to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the such Loans and/or Term Commitment on terms set forth in such Lender’s request, such Lender may assign to any Eligible Assignee in accordance with this Section 10.6 on the RFO Notice; provided, however, that same terms of such period proposed assignment to PW Partners and KLIM. Any such assignment to PW Partners or KLIM pursuant to this clause (viii) shall be extended following such evidenced by an Assignment and Assumption and all other requirements, as applicable, set forth in clause (iv) above. Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section 10.6, from and after the effective date as necessary specified in each Assignment and Assumption, the assignee thereunder shall be a party to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or madethis Agreement and, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken interest assigned by the RFO Offeree(s) to obtain such approvalsAssignment and Assumption, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (rights and obligations of a Lender under this Agreement, and the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or madeassigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.13, 2.14 and 10.5 with respect to facts and circumstances occurring prior to the expiration effective date of such assignment; provided, that except to the Transfer Period reasonably appropriate actions have been taken extent otherwise expressly agreed by the RFO Offeror to obtain affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such approvals, consents or authorizations or make Lender of a participation in such filings or registrations; rights and provided further that no such extension shall exceed thirty obligations in accordance with paragraph (30d) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.310.6.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Credit Agreement (Town Sports International Holdings Inc)
Right of First Offer. (a) Other than Prohibited Transferswith respect to (i) a Transfer to a Permitted Transferee or (ii) a Transfer or series of Transfers by a Stockholder and any of its Affiliates occurring within any six (6)-month period of Company Securities constituting less than 4% of the aggregate Company Securities outstanding on the date thereof, if at any time after the Lock Up Period a Shareholder desires Stockholder wishes to Transfer other than pursuant any of its Company Securities to any Permitted Transferan Unaffiliated Person, such Transfer shall be permitted only if such Shareholder Stockholder (the “RFO OfferorOffering Holder”) fully complies with shall deliver to each Major Stockholder and Designated Stockholder (collectively, the “ROFO Recipients”) and to the Company an irrevocable written notice (the “Offer Notice”), setting forth such Offering Holder’s intention to effect such a Transfer, the number of Company Securities proposed to be Transferred (the “Offered Securities”) and offering the ROFO Recipients the right (the “First Offer”) to purchase the Offered Securities as set forth herein.
(b) Each ROFO Recipient shall have the option to purchase, for cash, up to a number of Offered Securities equal to the product of (i) the total number of Offered Securities and (ii) a fraction, the numerator of which is the number of shares of Common Stock beneficially owned by such ROFO Recipient as of the applicable Transfer date, and the denominator of which is the total number of shares of Common Stock beneficially owned by all ROFO Recipients as of such date (such amount, the “ROFO Portion”). Each ROFO Recipient shall, within five (5) Business Days from receipt of the Offer Notice, send irrevocable written notice (a “ROFO Acceptance Notice”) to the Offering Holder and the Company indicating whether it has accepted the First Offer and if so, the maximum number of Offered Securities sought to be purchased, the proposed purchase price therefor (the “First Offer Price”), and any other material terms and conditions of the proposed Transfer. For the avoidance of doubt, a ROFO Recipient shall be deemed to have waived its right to participate in the First Offer if it fails to deliver a ROFO Acceptance Notice within the time period prescribed in this Section 3.3; provided 3.3(b).
(c) The ROFO Recipients shall have a right of oversubscription such that, if any ROFO Recipient does not elect to purchase Offered Securities or elects to purchase less than all of its ROFO Portion of the Offered Securities (all Offered Securities not so purchased, the “Remaining Offered Securities”), each ROFO Recipient that accepted the First Offer shall have the right to purchase its pro rata portion (based on the aggregate number of Offered Securities elected to be purchased by all ROFO Recipients) of the Remaining Offered Securities. In the event that all such Remaining Offered Securities are not purchased by the ROFO Recipients in the aggregate, the Company shall have the right to purchase any remaining portion.
(d) If ROFO Recipients and the Company, in the aggregate, do not elect to purchase all of the Offered Securities, then, subject to Section 3.4, the Offering Holder shall be free for a period of thirty (30) days from the date ROFO Acceptance Notices were due to be sent to the Offering Holder to Transfer the Offered Securities to an Unaffiliated Person for a price not less than the First Offer Price and on material terms and conditions not less favorable than those described in the ROFO Acceptance Notice. If a sale if not completed prior to the end of such thirty (30)-day period, then the Offering Holder must again comply with the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the any further Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed its Company Securities. Any Company Securities not so Transferred shall continue to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Right of First Offer. (ai) Other than Prohibited TransfersIf either the Tiptree Investors or the Warburg Investors or their respective Permitted Transferees (each, if at any time after the Lock Up Period a Shareholder desires “Transferor”) intends to Transfer any Shares Owned by the Transferor (other than Transfers described in Section 2(d)(v)) in a Transfer permitted pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that Agreement, the provisions of this Section 3.3 Transferor shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give first provide written notice (the “RFO Transfer Notice”) to each other Shareholder the Warburg Investors or the Tiptree Investors, respectively (eachcollectively, an the “RFO OffereeNon-Transferring Investors”), setting forth (i) the of its bona fide intention to Transfer such number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Offered Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Transfer Notice. A Transfer Notice at may be given prior to the same price per Ordinary Share and on the same terms and conditions as set forth thereintime a Transfer would be permitted in accordance with this Agreement, but no earlier than 90 days prior to such time.
(cii) The RFO Offeree(sOne or more Non-Transferring Investors may (but are not obligated to) collectively shall have the right offer to purchase (the “Right of First Offer”), all or any or all portion of the RFO Ordinary Offered Shares by delivering at a price and on other terms set forth in a written notice (the “RFO ExerciseOffer Notice”) of exercise of the Right of First Offer delivered to the RFO Offeror within 20 (twentyTransferor(s) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon after receipt of the Transfer Notice (the “ROFO Option Period”). Any Offer Notice that is delivered shall be a legally binding and irrevocable offer by the Non-Transferring Investor delivering such Offer Notice (each such Non-Transferring Investor, a “ROFO Joining Investor”) to purchase such amount of the Offered Shares at the price and on the terms set forth in such Offer Notice, capable of being accepted by the RFO applicable Transferor within thirty (30) days from the receipt of the Offer Notice; . If a Transferor accepts any such offer, then the Transferor and the applicable ROFO Joining Investors shall negotiate in good faith to consummate such Transfer within thirty (30) days of such acceptance.
(iii) If (x) the Transferor rejects (or fails to timely accept) the Offer Notices received, (y) no ROFO Joining Investors deliver any Offer Notices or (z) the Transferor accepts an Offer Notice and definitive agreements to effect such Transfer are not entered into within thirty (30) days following such acceptance or such agreement is entered into and is not timely consummated in accordance with the terms thereof, then within one hundred twenty (120) days (provided, howeverthat if a definitive agreement to effect such transfer is entered into within such 120-day period, that then the Transferor shall have 180 days to consummate such period shall be extended following transaction from entry into such date as necessary to permit all required approvalsdefinitive agreement, consents with an additional 180 days for any approvals or authorizations fromthat are required under applicable laws) of (1) the receipt of the Offer Notices, or filings or registrations withif delivered, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to (2) the expiration of the RFO Purchase ROFO Option Period reasonably appropriate actions have been taken by or (3) solely in the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
case of clause (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(dz), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to from the expiration of the time to enter into or consummate such Transfer, then, subject to compliance with all other applicable provisions of this Agreement, the Transferor may sell all, or any portion, of the Offered Shares to any Person not engaged in a Competing Business; provided that (A) solely in the event the ROFO Joining Investors collectively timely deliver Offer Notices with respect to all (but not less than all) of the Offered Shares, such Transfer Period reasonably appropriate actions have been taken may only be for a per Share amount equal to or greater than the lowest price per Share set forth in the Offer Notices and otherwise no less favorable to the Transferor than those offered in the Offer Notices and (B) solely in the event one or more ROFO Joining Investors timely deliver an Offer Notice with respect to less than all of the Offered Shares, such Transfer is not required to be for a per Share amount equal to or greater than the lowest price set forth in the Offer Notice if the acquirer acquires at least five percent (5%) more Offered Shares than offered collectively by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty ROFO Joining Investors.
(30iv) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has Transferor does not completed consummate the Transfer of any of the RFO Ordinary SharesOffered Shares in accordance with this Section 2(d) within such one hundred twenty (120)-day period (provided, that if a definitive agreement to effect such transfer is entered into within such 120-day period, then the RFO Offeror Transferor shall no longer be permitted have 180 days to dispose of consummate such RFO Ordinary transaction from entry into such definitive agreement, with an additional 180 days for any approvals or authorizations that are required under applicable laws), then the Transferor may not Transfer such Offered Shares without unless it sends a new Transfer Notice and once again fully complying complies with the provisions of this Section 3.32(d) with respect to such Offered Shares.
(fv) The RFO Offeror shallEach ROFO Joining Investor may assign all or any portion of its rights under this Section 2(d) to any of its Permitted Transferees.
(vi) For the avoidance of doubt, upon the provisions of this Section 2(d) shall not apply to a Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant Shares which is to Section 2.2 hereofa Permitted Transferee, and such director shall execute a letter terminate and be of resignationno further force or effect following an Initial Public Offering.
Appears in 1 contract
Sources: Shareholder Agreement (Tiptree Inc.)
Right of First Offer. (a) Other than Prohibited Transfers, if at Prior to making any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder a holder of Interests (the “RFO OfferorDisposing Interest Holder”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give will deliver a written notice (the “RFO Interest Sale Notice”) to each the Company and the other Shareholder (each, an “RFO Offeree”), setting forth (i) Interest Holders disclosing the number of Ordinary Shares Interests proposed to be disposed of Transferred (the “RFO Ordinary SharesOffered Interests”), (ii) . The Disposing Interest Holder agrees not to consummate any such Transfer until the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell parties to the RFO Offeree(s) Transfer have been finally determined pursuant to this Section 7.6 (the RFO Ordinary Shares set forth in “Interest Authorization Date”). The Company and the RFO Notice at Interest Holders may elect to purchase all or a portion of the same price per Ordinary Share and on the same Offered Interests upon such terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have in a written notice of such election to the right to purchase Disposing Interest Holder (the “Right Offer Notice”) within 30 days after the receipt of First Offer”)the Interest Sale Notice by the Company. If the Company and one or more Interest Holders elect to purchase the Offered Interests, any or the Company shall be entitled to purchase all of the RFO Ordinary Shares by delivering a written notice (Offered Interests it elects to purchase, and the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as remaining Offered Interests shall be purchased, collectively, by allocated among the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s electing Interest Holders pro rata share (based on the number of Ordinary Shares Interests held by each of them, or in such RFO Offeree other proportions as a proportion they may agree. If (i) the Interest Holders and/or the Company have not elected to purchase all, and not less than all, of the number Offered Interests within 35 days of Ordinary Shares held by all RFO Offerees). To receipt of the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered Interest Sale Notice by the RFO Offeror to Company, (ii) the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in Disposing Interest Holder has accepted the proportion (as nearly as may be) to offer by the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to Company and/or the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse Interest Holders and the re-offer for such Remaining RFO Ordinary Shares will be deemed to Company or the Interest Holders have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed consummated the purchase of all such shares within 55 days of the RFO Ordinary Shares within receipt of the RFO Purchase Period, as extended as provided in Section 3.3(d)Interest Sale Notice by the Company, or together have failed to deliver RFO Exercises within (iii) the RFO Response Period for all of Disposing Interest Holder has not accepted the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise offer by the Right of First OfferCompany and/or the Interest Holders, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”)Disposing Interest Holder may, to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any the provisions of Section 7.1 above, Transfer the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated Offered Interests at a price and on terms not no more favorable to the purchasers transferee(s) thereof than the terms those specified in the RFO Notice and (ii) Interest Sale Notice, during the RFO Offeror provides written confirmation 180-day period immediately following the Interest Authorization Date. Any Interests not transferred within such 180-day period will be subject to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.37.6 upon subsequent Transfer.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Operating Agreement
Right of First Offer. (a) Other than Prohibited TransfersExcept as specifically provided in Section 5.2(a), or with respect to any Transfer to the Parent or an Affiliate of a Member, if at any time after the Lock Up Period a Shareholder Member (a “Selling Member”) desires to Transfer other than pursuant to all or any Permitted Transfer, such Transfer shall be permitted only if such Shareholder portion of its Company Interest (the “RFO OfferorOffered Interest”), it shall provide written notice of its intention to make such a Transfer to the other Members (the “Non-Selling Members”) fully complies with and shall make an irrevocable and unconditional offer (a “ROFO Offer”) to sell the Offered Interest to the Non-Selling Members on a pro rata basis based on their respective Percentage Interest (without giving effect to the Selling Member’s Percentage Interest) at the price and on the terms set forth in the ROFO Offer. Upon receipt of this Section 3.3; provided that a ROFO Offer, any of the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shallNon-Selling Members may, prior to in their sole discretion, accept the Transfer of any Ordinary Shares to which this Section 3.3 applies, give ROFO Offer by delivering written notice (a “RFO ROFO Acceptance Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof Selling Member and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its whollyother Non-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares Selling Members within thirty (30) days of receipt of the ROFO Offer (the “ROFO Deadline”). If any Non-Selling Member fails to accept the ROFO Offer but other Non-Selling Member(s) have delivered a ROFO Acceptance Notice, then the Non-Selling Member(s) who have delivered a ROFO Acceptance Notice shall (i) be obligated to accept the ROFO Offer and acquire such Non-Selling Member’s Percentage Interest in the Offered Interest on a pro rata basis based on its or their respective Percentage Interest (without giving effect to the Percentage Interest of the declining Non-Selling Member(s) or the Selling Member’s Percentage Interest) or (ii) withdraw its ROFO Acceptance Notice within one (1) Business Day after the ROFO Deadline. If any Non-Selling Member so accepts the ROFO Offer, then the closing of the Transfer of the Offered Interest must occur within sixty (60) days (as such time period may be extended to obtain any required approval, consent or authorization of a Governmental Entity) following the date of the ROFO Deadline. If none of the Non-Selling Members accept the ROFO Offer by the ROFO Deadline, then the Selling Member will have the right, for a period of [*****] days thereafter upon to Transfer the Offered Interest to a third party transferee at a price and on terms no less favorable than the price and terms set forth in the RFO NoticeROFO Offer; provided, however, provided that the Selling Member first complies with any right of first offer in favor of Owner Operator required under the C&O Agreement (which compliance may occur simultaneously to the procedure outlined in this Section 5.3). If such Transfer is not consummated within such period shall be extended following or the Selling Member wishes to Transfer the Offered Interest to a to a third party transferee at a price or on terms less favorable to such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority Selling Member than the price and terms set forth in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First ROFO Offer, then any such subsequent Transfer by the RFO Offeror shall have Selling Member must again be subject to the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions first offer as set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.35.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Washington Gas Light Co)
Right of First Offer. Subject to the terms and conditions hereof, -------------------- Global hereby agrees to cause its wholly-owned subsidiary, Global Sports Interactive, Inc. ("GSI"), to use commercially reasonable efforts to first offer to Gen-X Equipment future sales by GSI of closeout athletic footwear, apparel and sporting goods inventory ("GSI Closeout Inventory"). Each time GSI proposes to offer any GSI Closeout Inventory for sale to a third party, Global shall cause GSI to use commercially reasonable efforts to offer such GSI Closeout Inventory to Gen-X Equipment in accordance with the following provisions:
(a) Other than Prohibited TransfersGSI shall notify (the "First Offer Notice") Gen-X Equipment orally or in writing of (i) its intention to offer such GSI Closeout Inventory for sale, (ii) the type and quantity of such GSI Closeout Inventory to be offered, and (iii) the price and terms, if at any time after the Lock Up Period a Shareholder desires any, upon which it proposes to Transfer other than pursuant to any Permitted Transfer, offer such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted TransfersGSI Closeout Inventory.
(b) The RFO Offeror shallWithin forty-eight (48) hours after receipt of the First Offer Notice, prior Gen-X Equipment may elect to the Transfer of any Ordinary Shares to which this Section 3.3 appliespurchase, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinspecified in the First Offer Notice, all, but not less than all, of such GSI Closeout Inventory described in the First Offer Notice.
(c) The RFO Offeree(sIf Gen-X Equipment elects not to purchase such GSI Closeout Inventory, or if Gen-X Equipment does not make any election within such forty- eight (48) collectively hour period with respect to such GSI Closeout Inventory, GSI may sell such GSI Closeout Inventory to any third party at any price which is not less than ninety percent (90%) of the price specified in the First Offer Notice and neither Global nor GSI shall have the right any further obligations hereunder with respect to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedGSI Closeout Inventory.
(d) If the RFO Offeree(sGSI desires to sell such GSI Closeout Inventory at a price which is less than ninety percent (90%) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth price specified in the RFO First Offer Notice; provided, howeverGSI shall notify Gen-X Equipment orally or in writing of the price at which it proposes to offer such GSI Closeout Inventory and Gen-X Equipment may elect, that within twenty-four (24) hours after such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or madenotice, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain purchase, at such approvals, consents or authorizations, or make such filings or registrations; price and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation First Offer Notice, all, but not less than all, of such sale; and provided further, that the Transfer Period shall be extended following GSI Closeout Inventory. If Gen-X Equipment elects not to purchase such date as necessary to permit all required approvals, consents or authorizations fromGSI Closeout Inventory, or filings or registrations withif Gen-X Equipment does not make any election within such twenty-four (24) hour period with respect to such GSI Closeout Inventory, neither Global nor GSI shall have any Governmental Authority in connection further obligations hereunder with respect to such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3GSI Closeout Inventory.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited TransfersIn the event that, if at any time after during the Lock Up Period a Shareholder desires term of this Agreement, CEC proposes to Transfer (other than pursuant any Transfer to a CEC Affiliate, which CEC Affiliate agrees in writing to be bound by the terms hereof) any Permitted Transferof the Claxson Shares, CEC shall first make an offer to Transfer such Transfer shall be permitted only if such Shareholder Claxson Shares to 1945 and 1947 (the “RFO Offeror”"Offered Holders") fully complies in accordance with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.following provisions:
(bi) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give CEC shall deliver a written notice (“RFO "Offer Notice”") to each other Shareholder the Offered Holders stating (each1) CEC's intention to offer such shares, an “RFO Offeree”), setting forth (i2) the number of Ordinary Shares proposed shares to be disposed of offered and (3) the “RFO Ordinary Shares”), price and terms upon which CEC proposes to offer such shares.
(ii) Within 10 business days after giving of the proposed purchase Offer Notice, the Offered Holders shall notify CEC in writing (the "Election Notice", specifying whether such parties elect, in the aggregate, to purchase, at the price per RFO Ordinary Shareand on the terms specified in the Offer Notice, and payment and other material terms and conditions and all (but not less than all) of the shares offered by CEC (each Offered Holder affirmatively so electing an "Exercising Holder").
(iii) an irrevocable offer If the Offered Holders elect, in the aggregate, to sell purchase all of the shares offered pursuant to the RFO Offeree(s) Offer Notice, then each Exercising Holder shall purchase the RFO Ordinary Shares set forth portion of the Claxson shares specified in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively Election Notice. If both Offered Holders elect to become Exercising Holders, each shall have the right to purchase at least 50% of the shares offered by CEC. The closing of a purchase of shares by an Exercising Holder or Exercising Holders pursuant to this subsection shall be no later than 10 business days following the delivery of the Election Notice, subject to receipt of any required regulatory approvals.
(b) Notwithstanding the “Right of First Offer”)foregoing, any or if the Offered Holders do not collectively elect to purchase all of the RFO Ordinary Shares by delivering a written notice (shares specified in the “RFO Exercise”) Offer Notice, CEC shall have no obligation to sell any of exercise of the Right of First Offer such shares to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)Offered Holders, and such other RFO Offeree(s) may accept by delivery to may, during the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re60 calendar-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such day period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) period provided in Section 1.2(a)(ii), enter into an agreement to obtain such approvals, consents Transfer or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of otherwise Transfer all of the RFO Ordinary Shares within shares specified in the RFO Purchase PeriodOffer Notice to any other party (a "Third Party Acquiror"), as extended as provided at a price (in cash or publicly traded securities with a fair market value at least equal to the cash price referred to in Section 3.3(d1.2(a)(i), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on and upon terms not no more favorable to the purchasers thereof Third Party Acquiror than the terms those specified in the RFO Notice Offer Notice. If CEC does not enter into an agreement for the Transfer of, or otherwise Transfer, the shares within such period, or if transactions under such agreement are not consummated within 90 calendar days of the execution thereof, the right provided hereunder shall be deemed to be revived and (ii) the RFO Offeror provides written confirmation such shares shall not be offered or Transferred unless first re-offered to the RFO Offeree(s) that such terms comply Offered Holders in accordance with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Section.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Irrevocable Proxy and Right of First Offer Agreement (1945 Carlton Investments LLC)
Right of First Offer. (a) Other If any Stockholder (other than Prohibited Transfersa Sponsor) desires to Transfer all or any portion of its Company Shares in a transaction to which this Section 4.3 applies (any such Stockholder, a “ROFO Stockholder”), then each Sponsor and MD Investor (each, a “ROFO Offeree”) shall have a right of first offer over such Company Shares, which shall be exercised in the following manner:
(i) The ROFO Stockholder shall provide the ROFO Offerees with written notice (a “ROFO Notice”) of its desire to Transfer such Company Shares. The ROFO Notice shall specify the number and class of Company Shares the ROFO Stockholder wishes to Transfer, the proposed purchase price per share (which purchase price shall be in cash or cash equivalents only) for each such class of Company Shares and any other terms and conditions material to the sale proposed by the ROFO Stockholder;
(ii) The ROFO Offerees shall have a period of up to ten (10) Business Days following receipt of the ROFO Notice (the “ROFO Election Period”), to elect to purchase (or to cause one or more of their Affiliates to purchase), in the aggregate, all, but not less than all, of such Company Shares on the terms and conditions set forth in the ROFO Notice by delivering to the ROFO Stockholder written notice thereof (such electing ROFO Offeree, a “ROFO Purchaser”). In the event that the aggregate number of Company Shares of an applicable class that the ROFO Purchasers have elected to purchase exceeds the aggregate number of Company Shares of such class subject to the ROFO Notice, the number of Company Shares shall be sold to the ROFO Purchasers as follows:
(1) there shall be first allocated to each ROFO Purchaser a number of Company Shares of each applicable class equal to the lesser of (A) the number of Company Shares of such class elected to be purchased by such ROFO Purchaser and (B) a number of Company Shares of such class equal to such ROFO Purchaser’s Pro Rata Portion; and
(2) the balance, if any, of Company Shares of each applicable class not allocated pursuant to clause (1) above shall be allocated to those ROFO Purchasers which offered to purchase a number of Company Shares of the applicable class in excess of such ROFO Purchasers’ respective Pro Rata Portions in proportion, as nearly as practicable, to the respective number of Company Shares of the applicable class which each ROFO Purchaser offered to purchase.
(iii) If the ROFO Offerees elect to purchase (or to cause one or more of their Affiliates to purchase) all of the Company Shares which are the subject of the proposed Transfer within the ROFO Election Period, such purchase shall be consummated within thirty (30) days after the date on which each such ROFO Offeree notifies the ROFO Stockholder of such election (subject to extension if necessary to permit the expiration or early termination of the HSR Waiting Period). Subject to Section 4.4, if the ROFO Offerees do not elect to purchase all of the Company Shares within the ROFO Election Period, the ROFO Stockholder may Transfer all of the Company Shares of each class specified in the ROFO Notice at any time after within one hundred and twenty (120) days following such period at a price which is not less than the Lock Up Period a Shareholder desires purchase price specified in the ROFO Notice and on terms and conditions no more favorable, in any material respect, to the purchaser than those specified in the ROFO Notice, and thereafter the ROFO Stockholder may not Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (Company Shares without first following the “RFO Offeror”) fully complies with the terms of procedures set forth in this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers4.3.
(b) The RFO Offeror shall, prior to In connection with the Transfer of all or any Ordinary portion of a ROFO Stockholder’s Company Shares pursuant to this Section 4.3 to one or more ROFO Offerees, the ROFO Stockholder shall only be required to represent and warrant as to its authority to sell, the enforceability of agreements against the ROFO Stockholder, that the Company Shares to which be transferred shall be free and clear of any liens, claims or encumbrances (other than restrictions imposed by this Section 3.3 appliesAgreement and pursuant to applicable federal, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”state and foreign securities laws), setting forth (i) that it is the number record and beneficial owner of Ordinary such Company Shares proposed and that it has obtained or made all necessary consents, approvals, filings and notices from governmental authorities or third parties to be disposed of (consummate the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinTransfer.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
4.3 shall not apply to Transfers of Company Shares (fi) The RFO Offeror shallto Permitted Transferees in accordance with Section 4.2 (Permitted Transferees); (ii) pursuant to, or consequent upon the Transfer exercise of the RFO Ordinary Shares, procure drag-along rights set forth in Section 4.5 (Drag-Along Rights); (iii) consequent upon the resignation exercise of such number of directors nominated by it, if any, as would be required the tag-along rights set forth in Section 4.4 (Tag-Along Rights) or (iv) pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationregistered public offering.
Appears in 1 contract
Right of First Offer. 8.1 From and after the first date on which Investor holds 15,000,000 (a) Other than Prohibited Transfersor 7,500,000, if at any time after as of such date, the Lock Up Period a Shareholder Company has exercised Call Option 2) or less Subscription Shares, subject to Clause 8.5, if Investor desires to Transfer sell, dispose of or otherwise transfer (“Transfer”) 1,000,000 or more Subscription Shares to any third party (other than pursuant an Affiliate of Investor) in one (1) or a series of related transactions, then prior to any Permitted consummating such proposed Transfer, such Transfer Investor shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO ExerciseROFO Notice”) to the Company that Investor desires to make such a Transfer; provided that, notwithstanding anything to the contrary herein, in no event shall Investor be required to deliver the ROFO Notice to the Company more than once.
8.2 The giving of exercise a ROFO Notice to the Company shall constitute an offer (the “Offer”) by Investor to Transfer all but not less than all of the Right of First Offer Subscription Shares then held by Investor (the “ROFO Shares”) to the RFO Offeror within 20 (twenty) Business Days from Company at the Market Price as of the date of delivery of the RFO ROFO Notice. The Company shall have two (2) Business Days following receipt of the ROFO Notice (the “RFO Response ROFO Period”), irrevocably stating therein ) within which to accept or reject such portion Offer as to all of the RFO Ordinary ROFO Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one giving written notice of acceptance or more wholly-owned Affiliates thereof and the proportion thereof rejection to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent Investor prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) ROFO Period. If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed Company fails to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined notify Investor in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions ROFO Period, the Company shall be deemed to have been taken by rejected the RFO Offeror Offer.
8.3 If the Company elects to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end purchase all of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary ROFO Shares, the RFO Offeror Company shall no longer purchase and pay, by wire transfer of immediately available funds (together with such additional amounts as shall be permitted required so that the net amount received by Investor per ROFO Share after any deduction or withholding, whether by the Company or any intermediary, of any Tax shall equal the Market Price as of the date of delivery of the ROFO Notice) to dispose an account designated by Investor, for all of the ROFO Shares within five (5) Business Days after the date on which the Offer has been accepted, and on the same day, Investor shall deliver to the Company all necessary certificates representing valid title to the ROFO Shares and such RFO Ordinary other documents as may be necessary to effect the transfer of the ROFO Shares; provided that, in the event that the Company fails to (a) make the foregoing payment to Investor, or (b) complete the acquisition of all of the ROFO Shares from Investor, within five (5) Business Days of the Company’s election to purchase all of the ROFO Shares, then (i) any such unpaid portion of the foregoing payment shall be subject to interest accrued daily at 12.5% per annum (starting from the date of acceptance of the Offer in writing by the Company to the date on which the foregoing payment is paid in full), and (ii) Investor shall be permitted, in its sole and absolute discretion, to terminate such acquisition of the ROFO Shares, or have the recourse as set out in Clause 10 below unless the Security has been released or should have been released in accordance with Clause 6.4. In addition to and without again fully complying limiting the foregoing, Investor shall be entitled to indemnification by the Company in accordance with Clause 9.
8.4 Upon the earliest to occur of (a) rejection in writing of the Offer by the Company, and (b) the expiration of the ROFO Period without the Company electing in writing to purchase all of the ROFO Shares, Investor shall have a 180-day period during which to effect a Transfer of any or all of the ROFO Shares at a price equal to or greater than the Market Price as of the date of delivery of the ROFO Notice; provided that, if the Transfer is subject to any regulatory approval, such 180-day period shall be extended until the expiration of ten (10) Business Days after all such approvals shall have been received.
8.5 The provisions of this Section 3.3.
(f) The RFO Offeror shall, Clause 8 shall be void and of no force and effect upon the Transfer earlier of (a) the RFO Ordinary Shares, procure exercise of both Call Option 2 and Call Option 3 by the resignation of such number of directors nominated by it, if any, as would be required Company pursuant to Section 2.2 hereofClause 7, and such director shall execute a letter of resignation(b) the date that is twenty-five (25) months after the Closing Date.
Appears in 1 contract
Sources: Share Subscription Agreement (Lotus Technology Inc.)
Right of First Offer. (a) Other than Prohibited Transfers, if at If any time after Investor (the Lock Up Period a Shareholder “Transferring Holder”) desires to Transfer (including indirectly by any of their direct or indirect equityholders) any Partnership Securities or shares of Common Stock, or any Series B Preferred Units (i) to address a Regulatory Concern (as defined in the Purchase Agreement), or (ii) pursuant to a Transfer approved by ENLK, in each of clauses (i) and (ii), pursuant to Section 5.05 of the Purchase Agreement (as applicable, the “ROFO Securities”), to a Person that is not a Permitted Transferee of such Transferring Holder (other than pursuant to any Permitted Section 7.5), then each non-transferring Investor (each, a “ROFO Offeree”) shall have a right of first offer over such ROFO Securities, which shall be exercised in the following manner:
(i) The Transferring Holder shall provide the ROFO Offeree with written notice (a “ROFO Notice”) of its desire to Transfer the ROFO Securities. The ROFO Notice shall set forth the number and type of ROFO Securities the Transferring Holder wishes to Transfer, such Transfer the form of consideration to be received in respect thereof and any other terms and conditions material to the sale.
(ii) The ROFO Offeree shall be permitted only if such Shareholder have a period of up to 15 Business Days following receipt of the ROFO Notice (the “RFO OfferorROFO Election Period”) fully complies to give the Transferring Holder a binding written offer (the “ROFO Offer”) to purchase (or, at the option of the ROFO Offeree, to cause one or more of its Affiliates to purchase) all but not less than all of the ROFO Securities described in the ROFO Notice on the terms and subject to the conditions set specified in the ROFO Notice. The ROFO Offer shall include the price per ROFO Security, including the form of consideration in respect thereof (the “Transfer Consideration”) and shall remain open and binding for 15 Business Days or such greater period of time as may be specified in the ROFO Offer.
(iii) If any ROFO Offeree makes a ROFO Offer within the ROFO Election Period and the Transferring Holder accepts such ROFO Offer during the period described in Section 7.4(a)(ii) above, such purchase shall be consummated on the later of (A) a mutually agreed Business Day within 15 days of the date on which the Transferring Holder notifies such ROFO Offeree of such acceptance, and (B) the fifth Business Day following the expiration or termination of all applicable periods under the requirements of the HSR Act or applicable foreign antitrust laws or satisfaction of other applicable legal requirements.
(iv) If no ROFO Offeree makes a ROFO Offer within the ROFO Election Period, or if the Transferring Holder does not accept the ROFO Offer, the Transferring Holder may Transfer all of the ROFO Securities specified in the ROFO Notice at any time within 120 days following the delivery of the ROFO Offer, or if no ROFO Offer was delivered, within 150 days of the delivery of the ROFO Notice (subject to extension as necessary to comply with the requirements of the HSR Act or applicable foreign antitrust laws or other applicable legal requirements) (A) at a price that is not less than 103% of the purchase price specified in the ROFO Offer and on economic terms and conditions that, taken as a whole, are not more favorable to the purchaser than those specified in the ROFO Offer (it being understood and agreed that the purchase price per ROFO Security shall be determined without regard to any agreed upon survival of representations or warranties, covenants, escrows or holdbacks or indemnification obligations that the Transferring Holder may agree to), or (B) if no ROFO Offer was delivered, at a price determined by the Transferring Holder, and on such other terms and conditions that are not more favorable to the purchaser than those specified in the ROFO Notice. Following the expiration of any time periods set forth in this Section 3.3; provided that 7.4(a)(iv), the provisions of Transferring Holder may not Transfer any such ROFO Securities without first following the procedures set forth in this Section 3.3 shall not apply to Permitted Transfers7.4.
(b) The RFO Offeror shall, prior receipt of Transfer Consideration by any Transferring Holder selling ROFO Securities pursuant to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth 7.4 shall be deemed a representation and warranty by such Transferring Holder that: (i) the number of Ordinary Shares proposed such Transferring Holder has full right, title and interest in and to be disposed of (the “RFO Ordinary Shares”), such ROFO Securities; (ii) the proposed purchase price per RFO Ordinary Share, such Transferring Holder has all necessary power and payment authority and other material terms and conditions has taken all necessary actions to sell such ROFO Securities as contemplated by this Section 7.4; and (iii) an irrevocable offer to sell to such ROFO Securities are free and clear of any and all liens, encumbrances and other restrictions (other than the RFO Offeree(s) the RFO Ordinary Shares Transfer restrictions set forth in the RFO Notice at the same price per Ordinary Share herein, and on the same terms and conditions as set forth thereinrestrictions created by any applicable federal or state securities laws).
(c) The RFO Offeree(s) collectively shall have For the right to purchase (the “Right avoidance of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Sharesdoubt, the RFO Offeror and RFO Offeree(srequirements of this Section 7.4 shall (i) shall be respectively bound, and shall complete only apply for so long as the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the transfer restrictions set forth in this Article III; provided, however, that (i) such Transfer Section 5.05 of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified Purchase Agreement are in the RFO Notice effect and (ii) not apply to any Foreclosure Transfer or any Transfer or resale by the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration applicable secured party of the Securities subject to such Foreclosure Transfer Period reasonably appropriate actions so long as the transfer restrictions set forth in Section 5.05 of the Purchase Agreement are no longer in effect or have been taken by the RFO Offeror waived with respect to obtain such approvalsForeclosure Transfer, consents Transfer or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Periodresale, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3applicable.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Coordination and Securityholders’ Agreement (Enfield Holdings Advisors, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Agreement, Aust hereby grants to SBC and Telmex, as long as SBC and Telmex own all of the shares of Series B Preferred Stock issued to them upon the closing under the Stock Purchase Agreements of even date herewith between SBC and NAS and between Telemex and NAS (the "Preferred Shares") or all of the shares of Common Stock issued upon conversion of such Preferred Shares (or a greater number of shares of Preferred Stock or shares of Common Stock than originally issued upon such closing or conversion), a right of first offer with respect to future sales by Aust of any shares of Common Stock or other securities of NAS (the "TRANSFER SHARES") owned of record or beneficially by Aust on or after the date hereof.
(a) Other than Prohibited TransfersIn the event Aust proposes to sell any TRANSFER SHARES, if at he shall give SBC, Telmex and any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Transferees (as defined in Section 3.5) written notice (the “RFO Offeror”"Notice") fully complies with of his intention stating: (i) a description of the TRANSFER SHARES he proposes to sell, (ii) the number of TRANSFER SHARES he proposes to sell, and (iii) the price per share at which, and other terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply on which, he proposes to Permitted Transferssell such TRANSFER SHARES.
(b) The RFO Offeror shallWithin 10 Business Days after the Notice is given, prior SBC, Telmex and the Transferees may elect to purchase, at the Transfer of any Ordinary Shares price specified in the Notice, up to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares shares of the TRANSFER SHARES proposed to be disposed of sold. An election to purchase (the “RFO Ordinary Shares”)"Election") shall be made in writing and must be given to Aust within such 10 Business Day period. Unless otherwise agreed by SBC, (ii) Telmex and the Transferees, if more than one of SBC, Telmex and any Transferee desires to purchase TRANSFER SHARES and there are insufficient TRANSFER SHARES to accommodate all proposed purchase price per RFO Ordinary Sharepurchases, the SBC, Telmex and payment Transferee purchases shall be on a pro rata basis based on the number of shares of NAS Preferred Stock and other material terms and conditions and (iii) an irrevocable offer NAS Common Stock they own at such time. The closing of the sale of TRANSFER SHARES by Aust to sell SBC, Telmex and/or any Transferee shall take place within 30 days after the Election is made, provided that the 30 day period shall be extended to the RFO Offeree(s) extent necessary to accommodate the RFO Ordinary Shares set forth in receipt of any necessary regulatory approvals for the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinsale.
(c) The RFO Offeree(s) collectively Aust shall have 90 days after the last date on which SBC's and Telmex's right of first offer lapsed to enter into an agreement (pursuant to which the sale of TRANSFER SHARES covered thereby shall be closed, if at all, within 45 days from the execution thereof) to sell the TRANSFER SHARES which SBC, Telmex and the Transferees did not elect to purchase (under this Agreement, at or above the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof price and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not materially more favorable to the purchasers thereof of such securities than the terms specified in the RFO initial Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority given in connection with such Transfers to be obtained or made, to sale. In the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror event Aust has not completed entered into an agreement to sell the Transfer of TRANSFER SHARES within such 90 day period (or sold and issued the RFO Ordinary Shares, TRANSFER SHARES in accordance with the RFO Offeror shall no longer be permitted to dispose foregoing within 45 days from the date of such RFO Ordinary Shares agreement), Aust shall not thereafter issue or sell any TRANSFER SHARES without again fully complying first offering such TRANSFER SHARES to SBC, Telmex and the Transferees in the manner provided in this Agreement.
(d) Notwithstanding any other provision hereof, Aust shall have the right to sell or otherwise transfer any TRANSFER SHARES without compliance with the any other provisions of this Section 3.3.
1 to (fi) The RFO Offeror shallAust's spouse, upon children, grandchildren, siblings, aunts, uncles, cousins, nieces, nephews, parents and/or grandparents, or (ii) to a trust for the Transfer benefit of Aust or any one or more of the RFO Ordinary Shares, procure the resignation foregoing (each of such number of directors nominated persons or entities, a "Permitted Transferee") who or which agrees to be bound by it, if any, as would be required pursuant to Section 2.2 the provisions hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Right of First Offer Agreement (SBC Communications Inc)
Right of First Offer. (a) Other than Prohibited Transfers, if at If EFS seeks to sell or Transfer any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Units (the “RFO OfferorOffered Units”) fully complies other than to an Affiliate, then EFS must first make an offering of the Offered Units to the other Members (other than any Major Breaching Member) in accordance with the terms of this Section 3.3; provided that the following provisions of this Section 3.3 shall not apply to Permitted Transfers7.02.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, EFS will give written notice (the “RFO Offering Notice”) to each the other Shareholder Members (each, an “RFO Offeree”), setting forth (iother than any Major Breaching Member) stating its bona fide intention to Transfer the Offered Units and specifying the number of Ordinary Shares proposed Offered Units that EFS proposes to be disposed Transfer the Offered Units. The Offering Notice will constitute EFS’s offer to review bids for the Transfer of the Offered Units to the other Members (other than any Major Breaching Member), which offer will remain outstanding for a period of 30 days (the “RFO Ordinary SharesROFO Notice Period”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(sUpon receipt of the Offering Notice, each Member (other than any Major Breaching Member) collectively shall will have until the right end of the ROFO Notice Period to offer to purchase all (the “Right of First Offer”), any or all but not less than all) of the RFO Ordinary Shares Offered Units by delivering a written notice (the a “RFO ExerciseROFO Offer”) to EFS that it offers to purchase such Offered Units at a price specified in such ROFO Offer. Any ROFO Offer so delivered will be irrevocable and binding upon delivery, by the delivering Member and, if within 30 days of exercise of receiving the Right of First ROFO Offer EFS provides written notice to such delivering Member that it elects to sell the RFO Offeror Offered Units to such delivering Member (which election will be irrevocable), will obligate such delivering Member to purchase (and EFS to sell) the Offered Units at the price set forth in the applicable ROFO Offer within 20 (twenty) Business Days from 60 days after the date of delivery of the RFO Notice delivering Member receives EFS’s notice (the “RFO Response PeriodROFO Closing Date”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If (x) EFS does not elect to accept a ROFO Offer in accordance with Section 7.02(c), (y) no Member delivers a ROFO Offer or (z) EFS receives a ROFO Offer but (A) EFS does not receive payment in full of the RFO Offeree(spurchase price for all of the Offered Units on the ROFO Closing Date or (B) shall have delivered the Transfer of all of the Offered Units is not consummated for any reason, including the failure to obtain any governmental approvals required in connection with the Transfer of the Offered Units by the ROFO Closing Date, but other than due to a breach by EFS of its obligation to consummate the sale of the Offered Units, then EFS may, during the 180-day period following the expiration of the ROFO Notice Period (which period may be extended for a reasonable time not to exceed an RFO Exercise additional 45 days to the RFO Offeror within extent reasonably necessary to obtain any required government approvals) (the RFO Response Period for “ROFO Transfer Period”), Transfer all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty Offered Units to any Person (30subject to, for the avoidance of doubt, Section 7.01(b)):
(i) days thereafter upon in the event EFS received a ROFO Offer but did not accept any ROFO Offer, subject to terms and conditions (including price) in the aggregate no more favorable to the transferee than those set forth in the RFO Noticebest ROFO Offer; providedand
(ii) in all other cases, however, that such period shall be extended following such date as necessary subject to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; terms and provided further that no such extension shall exceed 60 daysconditions (including price).
(e) If EFS does not Transfer the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares Offered Units within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the ROFO Transfer Period, as extended as the rights provided herein, hereunder will be deemed to be revived and the RFO Offeror has Offered Units will not completed be offered to any Person unless first re-offered to the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying Members in accordance with the provisions of this Section 3.37.02. For the avoidance of doubt, if there are no other Members that are not Major Breaching Members, then EFS will not be required to comply with this Section 7.02.
(f) The RFO Offeror shallprovisions of this Section 7.02 shall apply mutatis mutandis to Transfers of Units proposed to be made by any Person that is a direct or indirect Transferee of EFS or any of its Affiliates.
(g) The Members will take all actions as may be reasonably necessary to consummate the sale contemplated by this Section 7.02, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, including entering into agreements and delivering certificates and instruments and consents as would may be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationdeemed necessary or appropriate.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Arc Logistics Partners LP)
Right of First Offer. (a) Other than Prohibited Transfers, if In the event that the Indenture Trustee at any time after permits the Lock Up Period Lessor to sell, transfer, convey or otherwise alienate the Facility (which for so long as any Facility Notes are Outstanding the Lessor acknowledges can be done only with the consent of the Indenture Trustee acting at the direction of all of the Loan Participants and upon such terms as the Loan Participants may agree to in their sole discretion, unless such sale, transfer or conveyance is to a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be successor trustee or co-trustee permitted only if such Shareholder (the “RFO Offeror”) fully complies with by the terms of this the Trust Agreement and the Participation Agreement or to the purchaser of the Facility pursuant to Section 3.3; 14), and provided that no Event of Default shall have occurred and be continuing, before the Lessor may offer to sell, transfer, convey or otherwise alienate (other than any easement or other interest which the Lessor shall grant or convey pursuant to Section 23(a)) the Facility to a third Person (other than any Affiliate or designee of the Lessee) other than to any successor trustee or co-trustee permitted by the terms of the Trust Agreement and the Participation Agreement and other than to the purchaser of the Facility pursuant to Section 14, including in response to any unsolicited offer by a potential purchaser or potential transferee and prior to the acceptance of such offer or the making of a counteroffer, the Lessor shall offer, in writing, that interest in the Facility, and does hereby grant a right of first offer to purchase that interest in the Facility, to the Lessee for purchase at a price (the "Determined Price"), which Determined Price shall in any case never be less than all amounts due and owing by the Lessor under the Indenture, and upon terms (the "Determined Terms") specified by the Lessor. Such offer may be accepted by the Lessee at any time within sixty (60) days after the date of receipt by the Lessee of the notice of the offer and the Determined Price and Determined Terms by irrevocable written notice of the acceptance of such offer specifying the closing date for such purchase which shall not be more than thirty (30) days after the date of such written acceptance, and such purchase shall be made in accordance with Section 22(d)(i) (substituting "Determined Price" and "Determined Date" for "EBO Price" and "EBO Date", respectively) and Section 6.5 of the Indenture. In the event that the Lessee does not elect to purchase the Facility for the Determined Price and upon the Determined Terms, concurrently with the prepayment of all, but not less than all, of the Facility Notes pursuant to Section 6.4 of the Indenture and payment of all amounts due thereunder, the Facility may be sold by the Lessor at the Determined Price and upon the Determined Terms at any time during the period of two hundred seventy (270) days following the giving by the Lessee of a notice that it does not intend to exercise its right of first offer (or in the case of the deemed waiver by the Lessee of its right of first offer, during the period of 270 days following the expiration of the aforementioned 30-day period during which the Lessee shall have the right to accept the offer), without the need to offer the Facility to the Lessee pursuant to the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) 21. The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but Facility shall not be required, to purchase sold (1) at any price or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent upon any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not materially more favorable to the purchasers thereof purchaser than the terms specified those contained in the RFO Notice and (ii) the RFO Offeror provides written confirmation offer to the RFO Offeree(sLessee or (2) that at a time after such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further270-day period, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares each case without first having again fully complying complied with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer 21. Any failure of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required Lessee to exercise its rights pursuant to this Section 2.2 hereof21 shall in no event diminish, and such director shall execute a letter of resignationwaive or extinguish its rights with respect to any subsequent proposed sale or transfer.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited TransfersPrior to the solicitation of third party offers or the written acceptance of an unsolicited third party offer for sale of the Property by the Company in a transaction that would be a taxable disposition under the Code, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted TransferManager shall first notify the ▇▇▇▇▇▇▇ Representative in writing, such Transfer shall be permitted only if such Shareholder of the price (the “RFO OfferorSpecified Selling Price”) fully complies with for the terms of this Section 3.3; Property, provided that the provisions of this Section 3.3 shall 10.7 need not apply be complied with if at the time they would otherwise be applicable TTF and/or Beacon are exercising their rights under Section 8.3 against Members whose aggregate Percentage Interests are more than 33 1/3% of the aggregate Percentage Interests of all of the Original Partners or if at such time there has been failure to Permitted Transfers.
(b) The RFO Offeror shall, prior make any payments required to be made to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell Company pursuant to the RFO Offeree(sIndemnity Agreement after notice thereof from the Company and there has been a lapse of thirty (30) the RFO Ordinary Shares set forth days since such notice was given. The Original Partners (among themselves in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions whatever proportions as set forth therein.
(cthey may determine) The RFO Offeree(s) collectively shall then have the right to purchase the Property at the Specified Selling Price set forth in the Manager’s notice or to purchase the Interests of TTF and all of (but not less than all of) the other Beacon Members in the Company (the “Right of First OfferBeacon Interests”), any or all of the RFO Ordinary Shares such right to be exercised, if exercised at all, by delivering a written notice (from the “RFO Exercise”) of exercise of the Right of First Offer ▇▇▇▇▇▇▇ Representative to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares Manager given within thirty (30) days thereafter upon (the terms set forth “Election Period”) after the notice from the Manager given pursuant to above. Any such notice shall also include an election as to whether the purchase is of the Property or of the Beacon Interests. If no such designation is made, it shall be deemed that the Original Partners have elected to purchase the Beacon Interests. If the Original Partners exercise their rights under this paragraph, then the notice of such election shall be accompanied by, and shall be valid only if accompanied by, a non-refundable $2,000,000 cash deposit paid to an escrow agent designated by the Manager; such deposit shall be held by the escrow agent in an interest bearing account. If notice is not timely given or is not accompanied by the RFO Notice; providedrequisite deposit, the Original Partners shall be deemed to have elected not to purchase the Property. If the Original Partners purchase the Property or the Beacon Interests, as the case may be, the $2,000,000 shall be a credit against the purchase price. During the Election Period, the Manager shall make the books and records of the Company available to the Original Partners and shall allow access to the Property during normal business hours for customary inspections by prospective purchasers of real property, subject, however, that such period to delivery of confidentiality agreements and indemnities as to access comparable to those contained in the Master Transaction Agreement. Any purchase of the Property or the Beacon Interests by the Original Partners under this Section 10.7 shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares consummated within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (after the “Transfer Period”)notice from the Original Partners of their election to purchase the Property or the Beacon Interests, to dispose as the case may be, shall be for all cash and shall require the repayment of all mortgage loans on the RFO Ordinary Shares in one or more Transfers thereof Property, including, without being subject to any of limitation, the restrictions set forth in this Article III; Subordinate Loan, provided, however, that (i) such Transfer if any third party loan is assumable or, as the case may be, is not callable or it is not a default thereunder as a result of the RFO Ordinary Shares consummation of the purchase of the Beacon Interests, such loan may be assumed or, as the case may be, remain outstanding if such is consummated on terms not more favorable callable or a default or appropriate consent is received, provided that all fees and other costs and expenses for such assumption shall be paid by the purchasing Original Partners, and TTF, any other Beacon Member, Beacon and any of their Affiliates which have provided any guarantees or indemnities in connection with any such loan shall be released therefrom. In the event the Beacon Interests are to be purchased, the purchasers thereof than purchase price for the terms specified Beacon Interests shall be the amount the Beacon Members owning the Beacon Interests would receive (and as among the Beacon Members, in the RFO Notice amount each such Beacon Member would receive) if the Property were sold for the Specified Selling Price, all indebtedness of the Company were discharged, all other assets of the Company other than cash and (ii) cash equivalents were sold for their respective Book Values and the RFO Offeror provides written confirmation Company then liquidated. If any then existing third party indebtedness of the Company remains outstanding after a purchase of the Beacon Interests, then the principal amount thereof on the Closing of any such purchase shall be deducted in determining the aforesaid purchase price. In determining the amount pursuant to the RFO Offeree(s) that such terms comply with clause (i) hereof prior of the first sentence of this paragraph, it shall be assumed that no amount would be payable by the Company upon a sale of the Property on account of the D.C. Franchise Tax if none would have been payable upon a sale of the Property by the Company based on the Company liquidating at the time of a sale (and thus the gain being passed out to the consummation Members of the Company, if such sale; is then permissible or required under applicable law), and provided further, that after deducting one-half of the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents then applicable real estate transfer tax if none is incurred in the actual transaction or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, if and to the extent prior the Beacon Members do not bear such tax. For purposes of determining the amount due under the Subordinate Loan under the immediately preceding two paragraphs, it shall be deemed that the Property is sold for the Specified Selling Price. If the Original Partners do not exercise, or are deemed not to have exercised, their right of purchase pursuant to the preceding provisions of this Section 10.7, the Manager shall thereafter be entitled to cause the Company to sell the Property, provided that any such sale is closed within two hundred and seventy (270) days after the expiration of the Transfer Election Period reasonably appropriate actions have been taken at a price which is not less than ninety-two and one-half percent (92.5%) of the Specified Selling Price. In the event the Property is not sold to a third party within the aforesaid two hundred and seventy (270) days period for the minimum price determined pursuant to this paragraph, then if the Manager thereafter desires to sell the Property or thereafter receives an unsolicited offer for the Property, the Manager shall be required to reinstate the aforesaid provisions of this Section 10.7. In the event the Original Partners elect to purchase the Property or the Beacon Interests but fail to complete the purchase for any reason other than the Manager’s failure to cause the Company to convey the Property or any Beacon Member’s failure to convey its Interest or the failure to give the requisite representations and warranties provided for above, the aforesaid $2,000,000 deposit shall be retained by the RFO Offeror Beacon Members as liquidated damages (as payments between Members and not as Company revenue or expenditure) and the Manager shall thereafter be free to obtain such approvals, consents or authorizations or make such filings or registrations; cause the Company to sell the Property at any time and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with for any price and the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer 10.7 shall thereafter be null and void and no longer applicable as to any future potential sale of the RFO Ordinary SharesProperty. The remedies under this paragraph shall be the sole and exclusive remedies in the event the Original Partners elect to purchase the Property or to purchase the Beacon Interests but thereafter fail to close. Any conveyance of the Property by the Company to or as directed by the purchasing Original Partners shall be by standard conveyance documents, procure “as is”, and without any representations and warranties by the resignation Company or the Beacon Members except that, subject to the proviso below, the Beacon Members shall make real estate representations as to rent roll, leases and operating contracts (but not any other real estate related representations) which the Beacon Members’ parent customarily makes when it sells real estate and due authorization and similar entity representations of the selling Entity, except that all matters occurring or existing prior to the Closing Date under the Master Transaction Agreement shall be excluded from any such number representations, provided, however, if at such time the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Company or any Affiliate thereof or any Affiliate of directors nominated any Original Partner (an “▇▇▇▇▇▇▇ PM Affiliate”) is the property manager or the subproperty manager, then no real estate representations of any nature shall be made by itthe Company or the Beacon Members. Any conveyance of the Beacon Interests in the Company if there is a purchase of the Beacon Interests shall be by an Assignment of Member Interest with representations and warranties by the assigning Beacon Member of its authority to so convey and its ownership of the Interest being conveyed free and clear of all liens and other encumbrances other than those under this Agreement, as well as representations and warranties of the Beacon Members comparable to the Entity Representations contained in, and as such term is defined in, the Master Transaction Agreement for the period from the Closing Date until the closing of the purchase of the Beacon Interests. Any representations and warranties so provided shall have survival periods, floors and limits of liability and concepts of “deemed Buyer knowledge” which are the same as those set forth in the Master Transaction Agreement; as to “deemed Buyer knowledge”, the relevant individuals shall be such Persons as are agreed upon as between the ▇▇▇▇▇▇▇ Representative and the Manager, each acting reasonably, provided that in all events such individuals shall include the appropriate on-site manager, if any, as would be required pursuant to Section 2.2 hereofor the person having a comparable off-site position, and the relevant senior supervisor of the ▇▇▇▇▇▇▇ PM Affiliate, if any. In all events, all representations and warranties shall exclude any matter in existence prior to the Closing Date under the Master Transaction Agreement and shall exclude all matters which were or are caused by any act or omission of any Original Partner or any Affiliate of any Original Partner Closing costs shall be apportioned as between, and normal prorations shall be made as between, the Company, as if it were a seller of real property, and the purchasing Original Partners in the customary manner for real estate transactions in the District of Columbia. At the request of the Manager, upon a prospective sale of the Property, at any time from the initiation of the sale process therefor until the consummation of any sale, the ▇▇▇▇▇▇▇ Representative, on its own behalf and on behalf of all the other Original Partners, shall provide an Estoppel Certificate or other similar form of certification as to the compliance and satisfaction of the provisions of this Section 10.7, or if it believes such director compliance has not occurred, stating the particulars of any non-compliance. Any such certification by the ▇▇▇▇▇▇▇ Representative shall execute a letter be binding on all the Original Partners. If no such certification or statement of resignationnon-compliance is received within ten (10) Business Days after request therefor, then it shall be unrebuttably presumed that Section 10.7 has been complied with and such unrebuttable presumption shall be binding on all the Members, and any Person claiming by or through any Member.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Wells Real Estate Investment Trust Inc)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires Without prejudice to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 Clause 6.5, if any Selling Shareholder proposes to Transfer all or part of its ROFO Shares ("Transfer Shares”), then, the Selling Shareholder shall first give a written notice (“ROFO Offer Notice”) of such proposed Transfer to the Offerees. Each Offeree (including an Affiliate of such Offeree) shall have the right but not apply an obligation to Permitted Transfers.purchase all (and not less than all) the Transfer Shares (“ROFO Right”)
(b) The RFO Offeror shallWithin 15 (fifteen) days (“ROFO Response Period”) of receipt of such notice, prior each of the Offerees shall be entitled to (directly and/or through an Affiliate) (“ROFO Exercising Offeree”) respond to the Transfer ROFO Offer Notice by way of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO OffereeResponse”), setting forth offering to purchase all (iand not less than all) the number of Ordinary Shares proposed to be disposed of Transfer Shares, and shall set out the price per Transfer Share offered by them (the “RFO Ordinary SharesROFO Price”), (ii) the proposed payment mechanism and all other terms at which the Offeree is willing to purchase price per RFO Ordinary Sharethe Transfer Shares.. Two or more Offerees may jointly deliver a ROFO Notice, and payment and other material terms and conditions and (iii) an irrevocable in such joint offer, they may agree on any inter-se proportion or manner in which the ROFO Shares shall be acquired by them, provided that, the offer to sell to given under a joint notice shall be valid only if the RFO Offeree(s) price offered by all ROFO Exercising Offeree in such joint notice is the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinsame.
(c) The RFO Within 45 (forty-five) days from expiry of the ROFO Response Period, the Selling Shareholder shall communicate in writing to (i) the ROFO Exercising Offeree(s) collectively shall have whose Response has been accepted by the right to purchase Selling Shareholder (the “Right of First OfferIdentified Shareholder”), any or all of its decision to Transfer the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Transfer Shares held by such RFO Offeree as a proportion of it at the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase ROFO Price (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.ROFO
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise Without prejudice to the RFO Offeror within above, if more than one Offeree has exercised its ROFO Right (under separate Responses):
(i) the RFO Response Period for all Selling Shareholder may issue the RFO Ordinary SharesROFO Acceptance Notice to only 1 (one) ROFO Exercising Offeree, in which case the RFO Offeror and RFO Offeree(sSelling Shareholder may Transfer the ROFO Shares to such Identified Shareholder, so long as the ROFO Price offered by such Identified Shareholder is not less favourable than the ROFO Price offered by any other ROFO Exercising Offeree whose proposal has not been accepted by the Selling Shareholder;
(ii) the Selling Shareholder may issue the ROFO Acceptance Notice to more than 1 (one) ROFO Exercising Offerree, in which case the Selling Shareholder shall be respectively boundTransfer the Transfer Shares to the said Identified Shareholder to whom it has issued the ROFO Acceptance Notice(s), and shall complete on the sale and purchase basis of the RFO Ordinary Shares within thirty their proportionate shareholding (30on a Fully Diluted Basis) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary Company (unless agreed to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken otherwise by the RFO Offeree(s) to obtain Selling Shareholder and such approvalsROFO Exercising Offerees), consents or authorizations, or make so long as the ROFO Price offered by such filings or registrations; and provided further that no such extension shall exceed 60 daysIdentified Shareholders are not less favourable than the ROFO Terms offered by any other ROFO Exercising Offeree whose proposal has not been accepted by the Selling Shareholder.
(e) If the RFO Offeree(s) shall not have completed the purchase of all any of the RFO Ordinary ROFO Shares within have not been purchased by the RFO Purchase Period, as extended as provided Offerees in Section 3.3(daccordance with Clauses 6.6 (a) through (d), or together have failed to deliver RFO Exercises within if the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to Transferor does not accept any of the restrictions set forth in this Article III; providedROFO Prices, howeverthen, that (i) such Transfer after the expiry of the RFO Ordinary Shares is consummated on terms not more favorable to period mentioned in Clause 6.6(c) above, the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Transferor shall be extended following such date as necessary entitled to permit Transfer all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration (and not less than all) of the Transfer Period reasonably appropriate actions have been taken by Shares, provided that any such Transfer shall only be undertaken above the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end highest of the ROFO Prices (but in no event below the highest of the ROFO Prices) and on such terms and conditions which are no less favourable than those offered in the Responses (if Responses are provided) or at such terms and conditions as it deems fit in its sole discretion (if no Responses are provided). In the event that such Transfer Period, as extended as provided hereinis not consummated within a period of 180 (one hundred eighty) days after the expiry of the notice period mentioned in Clause 6.6(c), the RFO Offeror has Selling Shareholder shall not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary sell the ROFO Shares without again fully complying with each of the provisions requirements of this Section 3.3Clause 6.6. Any acquirer of the ROFO Shares pursuant to this Clause 6.6 (including any Offeree or any third party acquirer acquiring such ROFO Shares) shall execute a Deed of Adherence and be bound by the lock-in obligations applicable on such ROFO Shares and the lock-in obligations on the corresponding Yum Lock-in Shares, as set out in Clause 6.5 and shall be deemed to be a Locked-in Shareholder in relation to the ROFO Shares so acquired.
(f) The RFO Offeror shallNotwithstanding anything contained in this Agreement, upon each Shareholder hereby undertakes and covenants that, during the Transfer subsistence of the RFO Ordinary Sharesthis Agreement, procure the resignation of it shall comply with its obligations under any agreement executed by such number of directors nominated by it, Shareholder (if any), as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationthe Company and/or the Target Company with Yum (including the Yum Documents).
Appears in 1 contract
Sources: Shareholders Agreement
Right of First Offer. (ai) Other than Prohibited TransfersBefore the consummation of a Qualified Public Offering, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Major Stockholder (the “RFO OfferorTransferring Holder”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply wishes to Permitted Transfers.
(b) The RFO Offeror shall, prior to the effect a Transfer of any Ordinary its Common Shares to which this Section 3.3 appliesor securities convertible into or exchangeable into or exercisable for Common Shares, give then such Transferring Holder shall first deliver a written notice (the “RFO ROFO Notice”) to each the Company and the other Shareholder Major Stockholder or Major Stockholders, as applicable (each, an the “RFO OffereeROFO Offerees”), setting forth (i) . Such ROFO Notice shall disclose the number of Ordinary Common Shares or securities convertible into or exchangeable into or exercisable for Common Shares proposed to be disposed of Transferred (the “RFO Ordinary Offered Shares”)) and the material terms of any offer the Transferring Holder has received or is contemplating, if applicable.
(ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively Each ROFO Offeree shall have the right to purchase (the “Right of First Offer”)) to provide the Transferring Holder, any or all within 20 days after the date of the RFO Ordinary delivery of the ROFO Notice, with an irrevocable written offer to acquire the Offered Shares, upon the price, terms and conditions on which such ROFO Offeree is willing to purchase the Offered Shares by delivering a written notice (the “RFO ExerciseProposed Offer”).
(iii) The Transferring Holder, in its sole discretion, may elect to accept any Proposed Offer by delivering an irrevocable written notice of acceptance (the “ROFO Acceptance Notice”) of exercise of the Right of First Offer to the RFO Offeror ROFO Offerees within 20 (twenty) Business Days from days after the date of delivery of the RFO ROFO Notice (the “RFO Response ROFO Acceptance Period”), irrevocably stating therein provided that (A) if such portion Transferring Holder receives a Proposed Offer from more than one ROFO Offeree, such Transferring Holder may only accept the Proposed Offer with the most favorable terms and conditions (including price) in its reasonable discretion; (B) if such Transferring Holder receives Proposed Offers with equivalent terms (including price and other terms and conditions) from the ROFO Offerees (including the Company) and elects to accept one of such Proposed Offers, such Transferring Holder shall accept the Company’s Proposed Offer and, if the Company does not offer to purchase all of the RFO Ordinary Offered Shares, the Transferring Holder shall accept the other Proposed Offers, and the remaining Offered Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror allocated to the other RFO Offeree(sROFO Offerees on a pro rata basis; and (C) if such Transferring Holder receives Proposed Offers with equivalent terms (or if there is more including price and other terms and conditions) from the ROFO Offerees (other than the Company) and elects to accept one other RFO Offereeof such Proposed Offers, in such Transferring Holder shall accept all of the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)Proposed Offers, and the Offered Shares shall be allocated to such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedROFO Offerees on a pro rata basis.
(div) If The ROFO Offerees purchasing the RFO Offeree(s) shall have delivered an RFO Exercise Common Shares pursuant to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(sthis Section 4(b) shall be respectively boundentitled to require the Transferring Holder to provide representations and warranties regarding (A) its power, authority and shall complete legal capacity to enter into such Transfer of Common Shares; (B) valid right, title and interest in such Common Shares and the sale and purchase Transferring Holder’s ownership of such Common Shares; (C) the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that absence of any Encumbrances on such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrationsCommon Shares; and provided further that no (D) the absence of any violation, default or acceleration of any agreement or instrument pursuant to which such extension shall exceed 60 daysTransferring Holder or the assets of such Transferring Holder are bound as the result of such sale.
(ev) If Subject to any Tag-Along Rights, after the RFO Offeree(s) shall not have completed the purchase of all termination of the RFO Ordinary Shares within the RFO Purchase ROFO Acceptance Period, as extended as provided in Section 3.3(d)the Transferring Holder, during the 120-day period following the ROFO Acceptance Period or together have failed the 180-day period following the ROFO Acceptance Period if the Transferring Holder has entered into an agreement to deliver RFO Exercises within Transfer during the RFO Response Period for all of 120 days following the RFO Ordinary ROFO Acceptance Period, may Transfer the Offered Shares as contemplated in Section 3.3(d) or declined in writing to exercise at and upon the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, price and other material terms and conditions that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not are more favorable to the purchasers thereof Transferring Holder than the terms specified most favorable Proposed Offer that the Transferring Holder received (such Transfer, the “Permitted ROFO Transfer”). If the Transferring Holder has not consummated a Permitted ROFO Transfer within such 120-day period or 180-day period, as applicable, the Transferring Holder shall not thereafter Transfer any Common Shares (including such Offered Shares), whether pursuant to a Proposed Offer or otherwise, without first providing a new ROFO Notice to the ROFO Offerees in the RFO Notice manner provided above, and (ii) the RFO Offeror provides written confirmation such proposed Transfer shall again be subject to the RFO Offeree(srequirements of this Section 4(b).
(vi) that Upon the closing of the sale of any Common Shares pursuant to this Section 4(b), the Transferring Holder shall deliver at such terms comply closing, against payment of the purchase price therefor, certificates representing those Common Shares to be sold, duly endorsed for Transfer or accompanied by duly endorsed stock powers, and evidence of the absence of Encumbrances with clause respect thereto and of such other matters as are deemed reasonably necessary by the Company for the proper Transfer of such Common Shares on the books of the Company.
(ivii) hereof prior Notwithstanding anything to the consummation contrary in this Agreement, this Section 4(b) shall not apply to (A) Permitted Transfers, (B) Transfers of such sale; and provided furtherCommon Shares made in a Qualified Public Offering, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents (C) Transfers of Common Shares made by Dragged Holders in a Drag-Along Transaction or authorizations from, or filings or registrations with, any Governmental Authority (D) Transfers of Common Shares made in connection with such Transfers to be obtained or made, to the extent prior to the expiration exercise of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Tag-Along Rights.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Stockholder Agreement (Affinion Group Holdings, Inc.)
Right of First Offer. (a) Other than Prohibited TransfersJMB shall not cause or permit JMB Partner to, if at and JMB Partner shall not, make or permit to occur any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant of any of its Class A Units or make or respond to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies offers to do so except in compliance with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers3.
(b) The RFO Offeror shall, prior JMB and JMB Partner may make or permit to occur any Transfer of all or any portion of the Class A Units issued to JMB Partner to (i) any Person in connection with a registered public offering made pursuant to the provisions of the registration rights agreement, dated as of the date hereof, relating to the Class A Units, (ii) any Wholly Owned Affiliate of JMB or JMB Partner or any JMB Controlled Affiliate or (iii) its constituent members (on a ratable basis); provided, however, that no such Transfer shall be consummated (A) except in compliance with all applicable provisions of Article 9 of the WFP Partnership Agreement and (B) in the case of such a Transfer by JMB Partner described in clauses (ii) or (iii) above, unless such Wholly Owned Affiliate, JMB Controlled Affiliate or each such member (other than any member Controlled by the Partnership) shall have executed and delivered to each of the parties to this agreement (other than JMB or JMB Partner) a written instrument pursuant to which such Wholly Owned Affiliate, JMB Controlled Affiliate or member assumes (in respect of the Class A Units Transferred to it) all the obligations of JMB Partner under this Section 3 and Section 10 of this agreement. In addition, if JMB Partner shall have made a Transfer of Class A Units of the character described in clause (iii) above to JMB in compliance with all applicable provisions of this agreement and Article 9 of the WFP Partnership Agreement, JMB may Transfer all or part of such Class A Units to its constituent partners (on a ratable basis and without requiring such Partners to deliver the instrument described in clause (B) above); provided, however, that any Ordinary Shares such Transfer shall be made only in compliance with all applicable provisions of Article 9 of the WFP Partnership Agreement.
(c) If JMB Partner shall determine to which this Section 3.3 appliesoffer to make any Transfer (other than a Transfer by JMB or JMB Partner of the character described in subsection 3(b) above) of any Class A Units or to respond to any offer received by it with respect thereto, it shall first give written each of the Founding Limited Partners a notice (“RFO an "Offer Notice”") to each other Shareholder (each, an “RFO Offeree”), setting forth specifying (i) the number of Ordinary Shares proposed Class A Units it desires to be disposed of (the “RFO Ordinary Shares”)Transfer, (ii) the proposed date (which shall be at least thirty-one (31) days after the date of the Offer Notice) on which such Transfer is contemplated to occur, (iii) the purchase price per RFO Ordinary Share, and payment and other material terms and conditions Class A Unit (the "Unit Price") that JMB Partner is willing to accept for Transfer of such Class A Units and (iiiiv) if JMB Partner is willing to provide any purchase money financing in respect of such Transfer, the terms thereof that would be acceptable to JMB Partner. Each Founding Limited Partner shall have the right (the "First Offer Right"), exercisable by written notice (each, an irrevocable offer "Exercise Notice") to sell JMB Partner (a copy of which shall be provided concurrently to each other Founding Limited Partner) given not later than fifteen (15) days after the RFO Offeree(s) effective date under Section 19 hereof of the RFO Ordinary Shares Offer Notice, to purchase from JMB Partner its Ratable Percentage of the Class A Units identified in the Offer Notice for the Unit Price set forth in the RFO Notice at Offer Notice; provided, however, that if any Founding Limited Partner shall fail or decline to exercise the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “First Offer Right of First Offer”), any or all for its full Ratable Percentage of the RFO Ordinary Shares by delivering a written notice (Class A Units identified in the “RFO Exercise”) of exercise of Offer Notice, the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise Right in respect of the relevant Remaining RFO Ordinary Shares portion thereof not so exercised may be exercised by the other Founding Limited Partners (on a ratable basis or such other basis as they shall agree) by the sending of an additional Exercise Notice to JMB Partner within 10 thirty (ten30) Business Days days after the effective date under Section 19 hereof of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedOffer Notice as against all Founding Limited Partners.
(d) If the RFO Offeree(s) Founding Limited Partners shall not have delivered an RFO given Exercise to the RFO Offeror within the RFO Response Period for Notices in respect of all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares Class A Units identified in the Offer Notice within such thirty (30) days day period, JMB Partner shall thereafter upon have the terms right to Transfer all such Class A Units to any Person for cash or on the financing terms, if any, specified in the Offer Notice, at a purchase price per Class A Unit of not less than 95% of the Unit Price set forth in the RFO Offer Notice; provided, however, that provided such period sale shall be extended consummated not later than one hundred twenty (120) days following such the effective date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration under Section 19 hereof of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysOffer Notice as against all Founding Limited Partners.
(e) If the RFO Offeree(s) shall not have completed the purchase The closing of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “any Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation Founding Limited Partners pursuant to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.33 shall take place at the office of JMB Partner in Chicago, Illinois, or such other place in Chicago, Illinois, or New York City as shall be designated by JMB Partner on a date not later than the date set forth in the Offer Notice as the anticipated closing date. At such closing, JMB Partner shall deliver or cause to be delivered to each of the applicable purchasers, against receipt (by delivery of immediately available funds) of the purchase price owing to JMB Partner hereunder, an instrument in form reasonably acceptable to such purchaser assigning to such purchaser all JMB Partner's rights in and to the Class A Units specified in the Exercise Notice or Exercise Notices of such purchaser. Any and all transfer or similar taxes in respect of such transfer shall be paid by JMB Partner. All Class A Units so transferred by JMB Partner shall be free and clear of any claims or security interests of any Person (and the instrument of assignment shall contain a warranty to such effect by JMB Partner).
(f) The RFO Offeror shallNotwithstanding anything to the contrary herein contained, upon no term or provision of this Section 3 that may be or become inconsistent with the Transfer provisions of Section 9-1.1 of the RFO Ordinary SharesEstates, procure Powers and Trusts Law of the resignation State of such number New York, or any successor statute thereto in effect during the term of directors nominated by itthis agreement, if anyshall be operative following twenty-one years after the death of the last to die of those descendants of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, as would be required pursuant to Section 2.2 hereof▇▇., and such director shall execute a letter in being on the date of resignationthis agreement.
Appears in 1 contract
Sources: Transaction Agreement (JMB 245 Park Avenue Associates LTD)
Right of First Offer. (a) Other than Prohibited Transfers, if at If any time after Investor (the Lock Up Period a Shareholder "Transferring Holder") desires to Transfer (including indirectly by any of their direct or indirect equityholders) any Partnership Securities or shares of Common Stock, or any Series B Preferred Units (i) to address a Regulatory Concern (as defined in the Purchase Agreement), or (ii) pursuant to a Transfer approved by ENLK, in each of (i) and (ii), pursuant to Section 5.05 of the Purchase Agreement (as applicable, the "ROFO Securities"), to a Person that is not a Permitted Transferee of such Transferring Holder (other than pursuant to any Permitted Section 7.5), then each non-transferring Investor (each, a "ROFO Offeree") shall have a right of first offer over such ROFO Securities, which shall be exercised in the following manner:
(i) The Transferring Holder shall provide the ROFO Offeree with written notice (a "ROFO Notice") of its desire to Transfer the ROFO Securities. The ROFO Notice shall set forth the number and type of ROFO Securities the Transferring Holder wishes to Transfer, the form of consideration to be received in respect thereof and any other terms and conditions material to the sale.
(ii) The ROFO Offeree shall have a period of up to 15 Business Days following receipt of the ROFO Notice (the "ROFO Election Period") to give the Transferring Holder a binding written offer (the "ROFO Offer") to purchase (or, at the option of the ROFO Offeree, to cause one or more of its Affiliates to purchase) all but not less than all of the ROFO Securities described in the ROFO Notice on the terms and subject to the conditions set specified in the ROFO Notice. The ROFO Offer shall include the price per ROFO Security, including the form of consideration in respect thereof (the "Transfer Consideration") and shall remain open and binding for 15 Business Days or such Transfer greater period of time as may be specified in the ROFO Offer.
(iii) If any ROFO Offeree makes a ROFO Offer within the ROFO Election Period and the Transferring Holder accepts such ROFO Offer during the period described in Section 7.4(a)(ii) above, such purchase shall be permitted only consummated on the later of (A) a mutually agreed Business Day within 15 days of the date on which the Transferring Holder notifies such ROFO Offeree of such acceptance, and (B) the fifth Business Day following the expiration or termination of all applicable periods under the requirements of the HSR Act or applicable foreign antitrust laws or satisfaction of other applicable legal requirements.
(iv) If no ROFO Offeree makes a ROFO Offer within the ROFO Election Period, or if such Shareholder the Transferring Holder does not accept the ROFO Offer, the Transferring Holder may Transfer all of the ROFO Securities specified in the ROFO Notice at any time within 120 days following the delivery of the ROFO Offer, or if no ROFO Offer was delivered, within 150 days of the delivery of the ROFO Notice (the “RFO Offeror”) fully complies subject to extension as necessary to comply with the requirements of the HSR Act or applicable foreign antitrust laws or other applicable legal requirements) (A) at a price that is not less than 103% of the purchase price specified in the ROFO Offer and on economic terms and conditions that, taken as a whole, are not more favorable to the purchaser than those specified in the ROFO Offer (it being understood and agreed that the purchase price per ROFO Security shall be determined without regard to any agreed upon survival of representations or warranties, covenants, escrows or holdbacks or indemnification obligations that the Transferring Holder may agree to), or (B) if no ROFO Offer was delivered, at a price determined by the Transferring Holder, and on such other terms and conditions that are not more favorable to the purchaser than those specified in the ROFO Notice. Following the expiration of any time periods set forth in this Section 3.3; provided that 7.4(a)(iv), the provisions of Transferring Holder may not Transfer any such ROFO Securities without first following the procedures set forth in this Section 3.3 shall not apply to Permitted Transfers7.4.
(b) The RFO Offeror shall, prior receipt of Transfer Consideration by any Transferring Holder selling ROFO Securities pursuant to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth 7.4 shall be deemed a representation and warranty by such Transferring Holder that: (i) the number of Ordinary Shares proposed such Transferring Holder has full right, title and interest in and to be disposed of (the “RFO Ordinary Shares”), such ROFO Securities; (ii) the proposed purchase price per RFO Ordinary Share, such Transferring Holder has all necessary power and payment authority and other material terms and conditions has taken all necessary actions to sell such ROFO Securities as contemplated by this Section 7.4; and (iii) an irrevocable offer to sell to such ROFO Securities are free and clear of any and all liens, encumbrances and other restrictions (other than the RFO Offeree(s) the RFO Ordinary Shares Transfer restrictions set forth in the RFO Notice at the same price per Ordinary Share herein, and on the same terms and conditions as set forth thereinrestrictions created by any applicable federal or state securities laws).
(c) The RFO Offeree(s) collectively shall have For the right to purchase (the “Right avoidance of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Sharesdoubt, the RFO Offeror and RFO Offeree(s) requirements of this Section 7.4 shall be respectively bound, and shall complete only apply for so long as the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the transfer restrictions set forth in this Article III; provided, however, that (i) such Transfer Section 5.05 of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified Purchase Agreement are in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3effect.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Coordination and Securityholders' Agreement (Goldman Sachs Group Inc)
Right of First Offer. (a) Other than Prohibited TransfersSubject to Section 9.2 and Section 9.3(d) (but in addition to Section 9.4), if at any time after any member of the Lock Up Period a Shareholder Oaktree Group desires to (i) Transfer other than pursuant any portion of its interests in the JV Interests to a Third Party or (ii) effect a Change of Control with respect to it or any Permitted TransferAffiliate which owns JV Interests, then Oaktree shall first provide DGOC with notice (a “ROFO Notice”) which sets forth Oaktree’s bona fide intention to Transfer such Transfer shall JV Interests to a Third Party and specifying the portion of such JV Interests to be permitted only if such Shareholder Transferred (the “RFO OfferorROFO Interest”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers).
(b) The RFO Offeror shallFor a period of 10 Business Days following its receipt of a ROFO Notice (the “ROFO Offer Period”), prior DGOC will have the right, but not the obligation, to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice make a first offer (a “RFO NoticeROFO Offer”) to each other Shareholder Oaktree, by delivering to Oaktree a written offer (eachthe “ROFO Offer Letter”) for the DGOC Group to acquire all, an “RFO Offeree”)but not less than all, setting forth of the ROFO Interest, which ROFO Offer Letter shall (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) set forth the proposed purchase price per RFO Ordinary Share, for the ROFO Interest (the “ROFO Offered Price”) and payment and any other material terms and conditions of DGOC’s offer and (iiiii) an be irrevocable offer for 15 Business Days after receipt by Oaktree (the “ROFO Acceptance Period”). Subject to sell Section 9.3(c)(ii), if DGOC has not delivered a ROFO Offer within the ROFO Offer Period it shall be deemed to have waived all of its rights under this Section 9.3 to purchase the RFO Offeree(s) the RFO Ordinary Shares set forth ROFO Interest described in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinapplicable ROFO Notice.
(c) The RFO Offeree(s) collectively shall have Prior to the right to purchase (the “Right of First Offer”), any or all expiration of the RFO Ordinary Shares ROFO Acceptance Period, Oaktree shall notify DGOC whether it elects to accept the ROFO Offer; provided, that a failure by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer Oaktree to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as so notify DGOC shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to be a rejection of the ROFO Offer.
(i) If Oaktree accepts the ROFO Offer, the Parties shall cooperate with each other in good faith to consummate the purchase of the ROFO Interest as promptly as practicable following the acceptance of the ROFO Offer.
(ii) If Oaktree rejects (or is deemed to have been declinedrejected) the ROFO Offer, then, for a period of 180 days following the conclusion of the ROFO Acceptance Period (subject to reasonable extension for any required regulatory approvals), the members of the Oaktree Group may thereafter Transfer the ROFO Interest to a Third Party at a price no less than the ROFO Offered Price; provided, that Oaktree agrees to provide notice to DGOC at least 10 Business Days prior to its execution of any definitive agreement with respect to any such Transfer. If applicable members of the Oaktree Group have not closed the Transfer of the ROFO Interests to a Third Party within such 180-day period (subject to reasonable extension for any required regulatory approvals), then any proposed Transfer of JV Interests shall once again be subject to the terms and conditions of this Section 9.3.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase DGOC or any other DGOC Operator has been removed as Operator of a majority of the RFO Ordinary Shares within thirty J▇ ▇▇▇▇▇ pursuant to Section 5.1(c) (30or DGOC or any other DGOC Operator is for any other reason no longer the Operator of a majority of such J▇ ▇▇▇▇▇) days thereafter upon the terms set forth that are included in the RFO Notice; provided, however, JV Interests that such period shall be extended following such date as necessary to permit all required approvals, consents Oaktree (or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration other member of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(sOaktree Group) desires to obtain such approvalsTransfer to a Third Party hereunder, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) then DGOC shall not have completed a right of first offer with respect to such Transfer by the purchase of all members of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all Oaktree Group of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right any portion of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified their interests in the RFO Notice and (ii) the RFO Offeror provides written confirmation such JV Interests to the RFO Offeree(s) that such terms comply with clause (i) hereof prior a Third Party pursuant to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.39.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Participation Agreement (Diversified Energy Co PLC)
Right of First Offer. (a) Other than Prohibited TransfersExcept for Transfers to a Permitted Transferee or pursuant to Section 13.01 or Section 13.02, if at any time after a Unit Holder (the Lock Up Period a Shareholder desires “ROFO Seller”) wishes to Transfer other than pursuant to any Permitted Transferor all of the Units held by such ROFO Seller, such Transfer shall be permitted only if such Shareholder subject to the following provisions:
(a) The ROFO Seller shall deliver an irrevocable written notice (the “RFO OfferorROFO Notice”) fully complies with to the other Unit Holders (each a “ROFO Participant”), offering such Units to the ROFO Participants and specifying in reasonable detail the number of Units proposed to be Transferred (the “ROFO Interests”) and the proposed purchase price and any other material terms and conditions of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfersoffer (the “ROFO Purchase Terms”).
(b) The RFO Offeror shall, prior For a period of three (3) days after the ROFO Notice has been delivered to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice ROFO Participant (the “RFO Notice”) to each other Shareholder (each, an “RFO OffereeROFO Option Period”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively ROFO Participants shall have the right to elect to purchase (the “Right of First Offer”)all, any or all but not less than all, of the RFO Ordinary Shares ROFO Interests for cash (or other consideration specified in the ROFO Notice) by delivering a written notice (the a “RFO ExerciseROFO Exercise Notice”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery ROFO Seller prior to the RFO Offeror of an RFO Exercise in respect expiration of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offerROFO Option Period, after which time such re-offer shall lapse to the Company and the re-offer for such Remaining RFO Ordinary Shares will be deemed ROFO Seller agreeing to have been declined.
(d) If purchase the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon ROFO Interests on the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection ROFO Notice (including the same price and with such purchase to be obtained or made, to the extent prior to the expiration same amount of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(dconsideration per Unit), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror which ROFO Exercise Notice shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that include (i) such Transfer ROFO Participant’s election and agreement to purchase the number of ROFO Interests up to such ROFO Participant’s entire pro rata portion (based on the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (iiUnit holdings of all ROFO Participants) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided furtherROFO Interests, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.and
Appears in 1 contract
Sources: Limited Liability Company Agreement
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after In the Lock Up Period a Shareholder event the Facility Lessee desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth directly or indirectly (i) the number consolidate or merge, with or into any other Person or sell, lease, convey or otherwise transfer some or all of Ordinary Shares proposed its properties or assets pursuant to be disposed of (the “RFO Ordinary Shares”), Section 6.1 hereof or (ii) assign its interest in the Facility Lease pursuant to Section 22.4 of the Facility Lease (the "Facility Lease Interest"), then, if and only if as a result of such proposed purchase price per RFO Ordinary Shareassignment, and payment and other material sale or sales less than 50.1% of the ownership interests in the Facility Lease Interest or the Facility Lessee would be held beneficially by EME or Persons who are Affiliates of EME, then the Facility Lessee must first offer to sell, subject to the proviso contained in Section 16(m) of the Facility Lease, the Owner Lessor's Percentage of the ownership interest being so transferred pursuant to clause (i) above or such Facility Lease Interest (together, the "HC Facility Interest") to the Owner Participant on the terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in this Section 13.1. Such offer shall be made to the RFO Notice at Owner Participant in the same form of a proposed term sheet, which proposed term sheet shall include an outline of the price per Ordinary Share and of all of the material terms, conditions and provisions upon which the Facility Lessee would be willing to transfer such HC Facility Interest or any part thereof. The Owner Participant will thereafter have the right within a period of thirty (30) days from and after the receipt by the Owner Participant of such proposed term sheet to notify the Facility Lessee of its irrevocable intent to exercise its right (whether directly or through an Affiliate) to purchase all, but not less than all, of the HC Facility Interest being offered hereunder. If the Owner Participant elects to exercise the right provided in the preceding sentence, it shall within sixty (60) days of such notice purchase, and the Facility Lessee shall sell (subject to the proviso contained in Section 16(m) of the Facility Lease), the HC Facility Interest on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right offer giving rise to purchase (such right. If the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written Owner Participant does not give such notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror Facility Lessee within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon day period or does not purchase the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares HC Facility Interest within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided furthernotice, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.the
Appears in 1 contract
Sources: Participation Agreement (Eme Homer City Generation Lp)
Right of First Offer. If the Company proposes to offer or sell any New Securities, each Purchaser shall have a right of first offer with respect to such New Securities (the “Offered Securities”). If any Purchaser elects to exercise the right of first offer it may designate as purchasers under such right itself or its partners or affiliates, in such proportions among itself and such partners or affiliates as it deems appropriate. Each time the Company proposes to offer any Offered Securities, the Company shall first make an offering of such Offered Securities to the Purchasers in accordance with the following provisions:
(a) Other than Prohibited Transfers, if at any time after the Lock Up Period The Company shall deliver a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder notice (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth Purchaser stating (i) the number of Ordinary Shares proposed its bona fide intention to be disposed of (the “RFO Ordinary Shares”)offer such Offered Securities, (ii) the proposed purchase price per RFO Ordinary Sharenumber of such Offered Securities to be offered, and payment and other material terms and conditions and (iii) an irrevocable the price and terms, if any, upon which it proposes to offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinsuch Offered Securities.
(cb) The RFO Offeree(sWithin fifteen (15) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of calendar days after delivery of the RFO Notice (the “RFO Response Period”)Notice, irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, Purchaser may elect to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based obtain, at the price and on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice, up to that portion of such Offered Securities which equals the proportion that (A) the total number of Ordinary Shares then held by such Purchaser bears to (B) the total number of Ordinary Shares then held by all the shareholders with right of first offer with respect to such Offered Securities (such shareholders, including such Purchaser, collectively, the “RFO Holders”). At the expiration of such fifteen (15) day period, the Company shall promptly notify each RFO Holder that elects to purchase or acquire all the New Securities available to it, (each, a “Fully Exercising Holder”) of any other RFO Holder’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Holder may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of Offered Securities specified above, up to that portion of the Offered Securities for which RFO Holders were entitled to subscribe but that were not subscribed for by such RFO Holders which is equal to the proportion that (x) the total number of Ordinary Shares then held by such Fully Exercising Holder bears to (y) the total number of Ordinary Shares then held by all Fully Exercising Holders who wish to purchase such unsubscribed Offered Securities. The closing of any sale pursuant to this Section 5.07(b) shall occur within 60 days of the later of (x) the date that the RFO Notice is given and (y) the date of initial sale of Offered Securities pursuant to this Section 5.07(b).
(c) For purposes of this Section 5.07, “New Securities” means, collectively, equity securities of the Company, whether or not currently authorized, as well as rights, options, or warrants to purchase such equity securities, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for such equity securities, other than shares issued (i) by reason of a dividend, stock split, split-up or other distribution on shares, (ii) to employees or directors of, or consultants to, the Company or any of its Affiliates pursuant to a plan, agreement or arrangement approved by the Board in exchange for their services, (iii) as a result of Founder Loan Conversions, (iv) upon the exercise of the Warrants, or (v) any securities issued pursuant to the acquisition of another corporation or entity by the Company or any of its Subsidiaries by consolidation, merger, purchase of assets, or other reorganization, or other transactions as approved by the Board.
(d) The rights of each Purchaser under this Section 5.07 shall terminate on the earliest of (i) the 12-month anniversary of the Closing Date if the vesting condition of the Tranche II Warrants, as set forth in Section 2(b) thereof, fails to be satisfied, (ii) the RFO Offeror provides written confirmation to 24-month anniversary of the RFO Offeree(sClosing Date if the vesting condition of the Tranche III Warrants, as set forth in Section 2(b) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided furtherthereof, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers fails to be obtained or madesatisfied, to (iii) the extent prior to the expiration third anniversary of the Transfer Period reasonably appropriate actions have been taken by Closing Date, and (iv) the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at date on which the end Purchasers collectively hold less than 5% of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Company’s total Ordinary Shares without again fully complying with the provisions of this Section 3.3on a Fully Diluted Basis.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Share Subscription and Warrant Purchase Agreement (The9 LTD)
Right of First Offer. (a) Other than Prohibited TransfersSubject to the terms and conditions specified in this Section 4.1, if at and applicable securities laws, in the event the Company proposes to offer, issue or sell any time after New Securities, the Lock Up Period a Shareholder desires Company shall first make an offering of such New Securities to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies each ROFO Investor in accordance with the terms of this Section 3.3; provided that the following provisions of this Section 3.3 4.1. A ROFO Investor shall not apply be entitled to Permitted Transfersapportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice, in accordance with the provisions of Section 6.5 hereof, (the “Offer Notice”) to each of the ROFO Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) The RFO Offeror shallBy written notification received by the Company, prior within ten (10) calendar days after receipt of the Offer Notice by the ROFO Investors, each of the ROFO Investors may elect to purchase or obtain, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Series A Preferred Stock (and any other securities convertible into, or otherwise exercisable or exchangeable for, shares of Common Stock) then held, if any, by such ROFO Investor bears to the Transfer total number of any Ordinary Shares shares of Common Stock of the Company then issued and outstanding (assuming full conversion and exercise of all Convertible Securities and Options). The Company shall promptly, in writing, inform each ROFO Investor that elects to which this Section 3.3 applies, give written notice (“RFO Notice”) purchase all the shares available to each other Shareholder it (each, an a “RFO OffereeFully-Exercising Investor”)) of any other ROFO Investor’s failure to do likewise. During the five (5) day period commencing after receipt of such information, setting forth (i) each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which ROFO Investors were entitled to subscribe but which were not subscribed for by the ROFO Investors which is equal to the proportion that the number of Ordinary Shares proposed to be disposed shares of Common Stock issued and held, or issuable upon conversion of Series A Preferred Stock (the “RFO Ordinary Shares”)and any other securities convertible into, (iior otherwise exercisable or exchangeable for, shares of Common Stock) the proposed purchase price per RFO Ordinary Sharethen held, and payment and other material terms and conditions and (iii) an irrevocable offer to sell by such Fully-Exercising Investor bears to the RFO Offeree(stotal number of shares of Common Stock issued and held, or issuable upon conversion of the Series A Preferred Stock (and any other securities convertible into, or otherwise exercisable or exchangeable for, shares of Common Stock) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinthen held, by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) The RFO Offeree(s) collectively shall have To the right extent that the New Securities referred to purchase (in the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof are not elected to be purchased by each RFO Offeree or obtained as provided in Section 4.1(b) hereof, the Company may, during the ninety (or 90) day period following the expiration of the period provided in Section 4.1(b) hereof, offer the remaining unsubscribed portion of such Affiliate(s)). Each RFO Offeree shall have New Securities (collectively, the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s“Refused Securities”) to purchase) such RFO Offeree’s pro rata share (based on any person or persons at a price not less than, and upon terms no more favorable to the number of Ordinary Shares held by such RFO Offeree as a proportion offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary SharesNew Securities within such period, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there such agreement is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares not consummated within thirty (30) days thereafter of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the ROFO Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to: (i) shares of Common Stock issued or deemed issued as a dividend or distribution on Series A Preferred Stock in accordance with the Certificate of Incorporation; (ii) shares of Common Stock issued or issuable by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Article Fourth, Section B.4(e) and Article Fourth, Section B.4(f) of the Company’s Certificate of Incorporation; (iii) up to 3,434,829 shares of Common Stock, including Options therefor (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), issued to employees or directors of, or consultants or advisors to, the Company or any of its subsidiaries pursuant to the Company’s 2000 Stock Option Plan, 2007 Stock Option Plan, 2010 Stock Option Plan or the 2016 Stock Incentive Plan, whether issued before or after the date hereof (provided that any Options for such shares that expire or terminate unexercised or any restricted stock repurchased by the Company at cost shall not be counted toward such maximum number); (iv) shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the terms set forth in the RFO Notice; providedof such Option or Convertible Security, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority (v) shares of Common Stock issued in connection with such purchase a “public offering” that is registered under the Securities Act, (vi) shares of Common Stock issued to be obtained any Person that is not an Affiliate of any Investor or madethe Company or any of its subsidiaries in any direct or indirect acquisition, to merger or similar transaction duly approved in accordance with the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizationsapplicable Transaction Documents, or make such filings (vii) shares of Common Stock issued to any Person that is not an Affiliate of any Investor or registrations; and provided further that no such extension shall exceed 60 daysthe Company or any of its subsidiaries in a joint venture or any other strategic transaction.
(e) If the RFO Offeree(s) shall not have completed the purchase The right of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions first offer set forth in this Article III; provided, however, Section 4.1 may not be assigned or transferred except that (i) such Transfer right is assignable by each ROFO Investor to any Affiliate of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and such ROFO Investor or (ii) such right is assignable by any ROFO Investor to any other ROFO Investor and (iii) such right in assignable to any transferee of at least 238,547 shares of Common Stock (subject to appropriate adjustment in the RFO Offeror provides written confirmation to the RFO Offeree(sevent of any stock dividend, stock split, combination or similar recapitalization affecting such shares) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date held by any ROFO Investor as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvalsdate hereof, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying duly made in accordance with the provisions of this Section 3.3Transaction Documents.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited Transfers, if at Before any time after Shares may be Transferred by the Lock Up Period a Shareholder desires to Transfer other than Investor pursuant to a Permitted Public Transfer (excluding any Permitted TransferTransfer pursuant to paragraph (d) of Exhibit C), such Transfer the Investor shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give deliver a written notice (a “RFO ROFO Notice”) to each other Shareholder the Company, which shall confirm the Investor’s bona fide intention to Transfer Shares (eachsuch shares, an the “RFO OffereeROFO Shares”), setting forth ) in a Permitted Public Transfer. During the period of ten (i10) Business Days following the number delivery of Ordinary Shares proposed the ROFO Notice to be disposed of the Company (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response ROFO Negotiation Period”), irrevocably stating therein such the Investor shall, if so requested by the Company, negotiate exclusively with the Company in good faith with respect to a transaction in which the Investor shall Transfer all or a portion of the RFO Ordinary ROFO Shares as to the Company, in lieu of an effective Permitted Public Transfer for such ROFO Shares. For the avoidance of doubt, the Investor shall be purchasednot have any obligation to Transfer any ROFO Shares to the Company, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof Company shall not have any obligation to be purchased by each RFO Offeree (purchase any ROFO Shares from the Investor, unless the Company and the Investor mutually agree to such a transaction in writing. If, following the expiration of the ROFO Negotiation Period, the Company and the Investor have not agreed in writing for the Investor to Transfer all or such Affiliate(s)). Each RFO Offeree a portion of the ROFO Shares to the Company, then the Investor shall have the right, but shall not be required, to purchase during a period of six (or cause its wholly-owned Affiliate(s6) to purchase) such RFO Offeree’s pro rata share (based on months following the number of Ordinary Shares held by such RFO Offeree as a proportion end of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares ROFO Negotiation Period (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer ROFO Open Period”), subject to dispose the terms and conditions of this Agreement (including Section 4.4), to Transfer all of the RFO Ordinary ROFO Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article IIIa Permitted Public Transfer; provided, however, that (ix) such Transfer if the ROFO Shares are comprised of the RFO Ordinary Registrable Shares is consummated on terms not more favorable (as defined in Exhibit C), and (y) if the Investor demands, pursuant to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation Registration Rights, a registration of such sale; and provided furtherROFO Shares or the filing of a Prospectus Supplement (as defined in Exhibit C) with respect to such ROFO Shares during the ROFO Open Period, that then the Transfer ROFO Open Period shall be extended end six (6) months following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration effectiveness of the Transfer Period reasonably appropriate actions have been taken applicable Registration Statement or Prospectus Supplement filed by the RFO Offeror Company pursuant to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. as contemplated by Exhibit C. If at the Investor desires to Transfer any ROFO Shares following the end of the Transfer PeriodROFO Open Period in a Permitted Public Transfer, as extended as provided herein, then the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror Investor shall no longer be permitted required to dispose of such RFO Ordinary Shares without again fully complying comply with the provisions of procedures set forth under this Section 3.3.
(f) The RFO Offeror shall, upon 4.6 again by delivering a new ROFO Notice to the Transfer of Company and provide the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required Company with another ROFO Negotiation Period pursuant to this Section 2.2 hereof, and such director shall execute a letter of resignation4.6.
Appears in 1 contract
Sources: Investment and Strategic Cooperation Agreement (Janus Capital Group Inc)
Right of First Offer. Subject to the provisions of Section 2 of this Schedule “D, and subject to existing tenants’ prior rights, Tenant shall have a one time only right of first offer to lease:
(ai) Other than Prohibited Transfersany space in Building 9 (“First ROFO Space”); and/or
(ii) Suite 200 in Building 10 (“Second ROFO Space”) (collectively the “ROFO Space”) whenever such space becomes available for re-leasing from time to time by the Landlord, if after the termination, surrender or expiry of the existing leases of such space to occur following the date of the Lease or the leases of tenants relocated to all or a portion of the ROFO Space (it being hereby acknowledged that, as of the date hereof, the Second ROFO Space is currently available for lease and that despite the foregoing, the Landlord shall be entitled to enter into a lease with a third party for the ROFO Space or any part thereof at any time, from time after to time, until the Lock Up Period a Shareholder desires to Transfer other than whole of the ROFO Space is leased, without triggering the within right of first offer) have expired or been terminated either by the tenant (pursuant to any Permitted Transfer, rights of termination it may have under its lease) or by the Landlord (as a result of an event of default) and after any options to renew or extend the ROFO Space granted to such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”tenant(s) fully complies with under the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall such lease(s) have not apply to Permitted Transfers.
(bbeen exercised or have expired. Further, if any such tenant(s) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(deither fail(s), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(delect(s) or declined in writing not, to exercise its option to renew or extend or if such tenant(s) do(es) not have an option to renew or extend contained in its lease for the Right of First OfferROFO Space, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”)Landlord shall, to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth despite anything contained in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable Section 4 to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation contrary, be free to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection enter into an agreement with such Transfers to be obtained or made, to tenant(s) extending the extent prior to term of its lease for the expiration ROFO Space without triggering the within right of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3first offer.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires 5.1 Without prejudice to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 Article 4 above, in the event that E8 contemplates any transfer of Shares of Allego or any Allego Holding, E8 shall not apply allow Meridiam to Permitted Transfers.
(b) The RFO Offeror shall, prior to exercise a right of first offer in respect of the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed Securities to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase transferred (the “Right of First Offer”), under the conditions described in this Article 5. E8 shall promptly notify Meridiam of its intention to sell Securities of Allego or any or all Allego Holding Company, specifying the number of the RFO Ordinary Shares by delivering a written notice Securities it intends to sell (the “RFO ExerciseSecurities for Sale”) and the price (in cash) at which E8 irrevocably undertakes to sell the Securities for Sale (the “Asking Price”), such notice being the “Transfer Notice”.
5.2 Within thirty (30) days of receipt of the Transfer Notice (the “Offer Period”), Meridiam must, if it wishes to exercise its First Offer Right, send E8 a notice in response (hereinafter the “Response Notice”) indicating its wish to exercise its First Offer Right, it being specified that the exercise of this First Offer Right will constitute an irrevocable commitment to acquire the Securities for Sale at the Asking Price. In the event that Meridiam exercises its Right of First Offer, E8 and Meridiam shall formalize their agreement and conclude, within ten (10) days of the date of sending the Notice of Response, an agreement for the sale of securities relating to the Securities for Sale, it being specified that ES shall not be required to grant any representation or warranty other than the fundamental representations and warranties (ownership of the Securities for Sale, absence of security interests in the Securities to be Sold and authority and capacity to enter into such agreement of assignment).
5.3 In the event of Meridiam’s exercise of its Right of First Offer, the transfer of ownership of the Securities for Sale will take place in favour of Meridiam within twenty (20) days of the sending of the Notice of Response. On the date of such transfer, E8 will deliver to Meridiam all deeds (duly dated and signed) necessary for the transfer of the Securities for Sale to Meridiam and, more generally, any document required under Dutch law to implement the transfer of the Securities for Sale or for the completion of the legal and registration formalities against payment of the Asking Price. E8 acknowledges and agrees that at any time during the procedure described above, Meridiam may substitute itself for any Meridiam Affiliate or any Third Party for the exercise of the Right of First Offer Right. In the event of a substitute of a Third Party by Meridiam in the exercise of its First Offer Right, E8 will also provide this Third Party with the “Know Your Customer” documents that the latter should have.
5.4 In the event that (i) the First Offer Right has not been exercised in accordance with the terms and conditions referred to in this Article 5 or (ii) after the exercise of the First Offer Right, the Asking Price has not been paid within the time limits set out above, E8 may enter into any agreement with a view to the RFO Offeror sale of the Securities to be Sold to any Third Party of its choice, provided that the sale price of the Securities to be Sold is greater than or equal to the Asking Price. The sale of the Securities for Sale must take place within 20 six (twenty6) Business Days from months of the expiry of the Offer Period, failing which E8 will have to comply again with the procedure set out in this article 5. As necessary, it is specified that E8 must refuse any offer to buy the Securities for Sale if the price offered is lower than the Asking Price In the absence of a purchaser of the Securities for Sale at the end of any sale process, a period of six (6) months must have elapsed between the date of completion of the last sale process and the date on which a new Transfer Notice is sent to Meridiam. Articles 6 - Exit
6.1 Promise of Sale in the event of an Exit
6.1.1 In the event of the occurrence of a Liquidity Event (other than the admission to a regulated or organised market of the Securities of any entity of the Allego Group or an issue of Securities), at the end of which Meridiam or any Meridiam Affiliate would hold, directly or indirectly, less than fifty percent (50%) of the share capital and voting rights of Allego or any Allego Holding Company (the “Exit”), E8 irrevocably undertakes to sell to Meridiam, at Meridiam’s request, a number of Shares of Allego or any Allego Holding that it holds on the date of delivery of the RFO Notice of Exercise of the Promise (as this term is defined below), equal to the Minimum Number of Shares (as this term is defined in Article 3.4), under the conditions set out below (the “RFO Response PeriodLiquidity Sale Agreement”). The Parties expressly agree that this Liquidity Promise to Sell constitutes a unilateral promise within the meaning of Article 1124 of the Civil Code.
6.1.2 To the extent necessary, E8 acknowledges that it has definitively and irrevocably consented to such sale and that such consent is not subject to revocation prior to the Deadline (as that term is defined below). In this context, the sale will be completed as soon as Meridiam expresses its intention to acquire the Promised Securities (materialized by the delivery of the Notice of Exercise of the Promise to E8 (as this term is defined below), any action or intervention by E8 as of the date of signature hereof being without effect. Meridiam hereby accepts the benefit of the Liquidity Sale Promise without however making any commitment to waive it. It is also specified that Meridiam may substitute itself for any Meridiam Affiliate or any Third Party in the exercise of the Liquidity Sale Promise.
6.1.3 The Liquidity Sale Agreement is exercisable by Meridiam (subject to an Exit) from the date of signature of this Agreement until the earlier of (i) December 31, 2035 and (ii) the date on which Meridiam or any Meridiam Affiliate ceases to hold, directly or indirectly, more than 50% of the share capital and voting rights of Allego or any Allego Holding Company (the “Maturity Date”), irrevocably stating therein such portion failing which this Liquidity Sale Agreement will lapse. The Liquidity Promise to Sell may be lifted by giving E8 a notice of exercise of the RFO Ordinary Shares as shall be purchased, collectively, by Liquidity Promise to Sell before the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares Deadline Date (the “Remaining RFO Ordinary SharesNotice of Exercise of the Promise”), at any time for a period of ninety (90) days before (and up to) the date of completion of the Exit in question. The Notice of Exercise of the Promise must indicate (i) the Unit Price at which the Promised Securities will be acquired (the “Liquidity Promise to Sell Price”), (ii) the date of completion of the proposed Exit and (iii) in the event that Meridiam replaces one of its Affiliates or a Third Party in the exercise of the Liquidity Promise to Sell, the identity of such Affiliate or Third Party.
6.1.4 The unit purchase price of the Promised Securities (the “>> Price) will be equal to the unit price of the Securities of Allego or any Allego Holding Company (or, as the case may be, the unit price of the Securities of Allego or any Allego Holding Company of the same class) sold on the occasion of an Exit.
6.1.5 In the event of the Liquidity Promise to Sell being exercised, the transfer of ownership of the Promised Securities must take place on a date (the “Promise Fulfilment Date”) shall immediately which is not later on the date of completion of the Exit (it being specified that the Securities would be re-offered by returned to E8, at the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offereesame Price, in the proportion (as nearly as may beevent of non-completion of the Release) to or, in the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror case of an RFO Exercise in respect Exit consisting of the relevant Remaining RFO Ordinary Shares within 10 sale by Meridiam (tenor any Meridiam Affiliate) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
one hundred percent (d100%) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares Securities of Allego or any Allego Holding, within thirty (30) days thereafter upon of the terms set forth in completion of this sale.
6.1.6 On the RFO Notice; providedDate of Fulfilment of the Promise, howeverE8 shall deliver to Meridiam (or any Affiliate or Third Party that Meridiam has substituted) any deed (duly dated and signed) necessary for the completion of such sale to Meridiam (or any Affiliate or Third Party that Meridiam has substituted) of the Promised Securities and, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations withmore generally, any Governmental Authority in connection with such purchase document required under Dutch law to implement the transfer of Promised Securities or for the fulfilment of the Promised Securities legal and registration formalities. In return, Meridiam (or any Affiliate or Third Party that Meridiam has substituted) shall pay to E8, on the Promise Fulfillment Date, the Liquidity Promise of Sale Price by bank transfer to E8’s account (the details of which will be obtained or made, provided by E8 to the extent Meridiam no later than five (5) days prior to the expiration Promise Fulfillment Date). In the event that ▇▇▇▇▇▇▇▇ has substituted a Third Party, E8 shall also deliver to this Third Party the “Know Your Customer>> documents that must be communicated to him.
6.1.7 The parties hereby grant all powers to any officer of Allego (or any Allego Holding), on the Date of Fulfilment of the RFO Purchase Period reasonably appropriate actions have been taken Promise, with the option of delegation to any third party of its choice, to register Meridiam (or any Affiliate or Third Party that Meridiam has substituted) as the holder of the Promised Securities in the shareholder registers of Allego (or any Allego Holding) on the Date of Fulfilment of the Promise and to proceed, as soon as possible after the Date of Fulfilment of the Promise, with all filings and publications required by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; legal and provided further that no such extension shall exceed 60 daysregulatory provisions applicable in the Netherlands.
6.1.8 E8 represents and warrants to Meridiam (eor any Affiliate or Third Party that Meridiam has substituted) If that throughout the RFO Offeree(s) shall not have completed the purchase period of all validity of the RFO Ordinary Shares within the RFO Purchase PeriodLiquidity Promise to Sell, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all ownership of the RFO Ordinary Shares Securities of Allego or any Allego Holding that it may hold (under the Liquidity Promise to Sell) will not be encumbered by any right in rem, option, privilege, pledge or other security other than those resulting from the articles of association of Allego or any Allego Holding Company as contemplated in Section 3.3(d) or declined in writing to exercise the Right case may be It is specified that this Promise of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms Sale will not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed prohibit the Transfer of its Shares by E8, once the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3First Offer Rights have been exhausted.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited TransfersPrior to a Qualified IPO, if at subject to and excluding (w) any time Transfers by CCMP pursuant to Section 4.1(a), (x) Transfers by ▇▇▇▇▇▇▇ pursuant to Section 4.1(b), (y) Transfers by Altoma pursuant to Section 4.1(c), and (z) any Transfers made pursuant to (i) an offering of equity securities registered under the Securities Act, (ii) Section 4.2, (iii) Section 4.3, (iv) Section 4.5 pursuant to a sale in which the Drag-Along Sellers are exercising drag-along rights, and (v) Section 4.7, in the event that, subsequent to four (4) years after the Lock Up Period a Shareholder Original Date in the event CCMP or ▇▇▇▇▇▇▇ or any of their Permitted Transferees (such Person referenced in subsections (A) and (B), the “ROFO Seller”) desires to Transfer other than pursuant shares of Common Stock owned by it to any Permitted TransferPerson, such Transfer ROFO Seller shall be permitted only if such Shareholder notify in writing (the “RFO OfferorROFO Notice”) fully complies with the Holders other than the ROFO Seller (the “ROFO Parties”) and the Company, of: (A) its desire to Transfer such shares of Common Stock, (B) the number of shares proposed to be Transferred (the “ROFO Shares”) and (C) the price at which the ROFO Seller is willing to sell the ROFO Shares (the “ROFO Notice Price”), and (D) other terms of this Section 3.3; provided that such proposed sale (the provisions “ROFO Notice Terms”). The ROFO Seller(s) will negotiate in good faith for a period of this Section 3.3 not less than 21 days after the date of the ROFO Notice with any ROFO Parties who express an interest in acquiring the ROFO Shares. The ROFO Parties shall be entitled, but not apply required, within 21 days after the delivery date of the ROFO Notice, to Permitted Transfersdeliver a cash offer notice (an “ROFO Offer Notice”) to the ROFO Seller of their offer for all, or any portion, of the ROFO Shares set forth in the ROFO Notice. If any ROFO Offer Notice is accepted by the ROFO Seller, each ROFO Party timely delivering a ROFO Offer Notice shall have the right to acquire a pro rata number of ROFO Shares based on the relative number of shares of Common Stock then owned by all of the ROFO Parties timely delivering a ROFO Offer Notice.
(b) The RFO Offeror shallUnless the ROFO Seller and the ROFO Parties otherwise agree, in the event ROFO Offer Notices at least equal to the ROFO Notice Price are not delivered to the ROFO Seller on or prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) date 21 days after the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all delivery date of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO ROFO Notice (the “RFO Response PeriodROFO Offer Deadline”), irrevocably stating therein such portion of the RFO Ordinary Shares as offer shall be purchaseddeemed rejected with respect to such ROFO Shares so offered, collectivelyand, by at any time within 120 days after the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and ROFO Offer Deadline, the proportion thereof ROFO Seller shall be entitled to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall sell any ROFO Shares not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror Transferred pursuant to the other RFO Offeree(s) (ROFO Offer Notices on terms no more favorable than that ROFO Notice Terms and for a cash price equal to or if there is more greater than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to ROFO Notice Price. After the expiration of such 120-day period, if the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall ROFO Seller has not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided hereinsold, the RFO Offeror has ROFO Seller may not completed Transfer the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary ROFO Shares without complying again fully complying with the provisions of this Section 3.34.9.
(fc) The RFO Offeror shallTo the extent ROFO Offer Notices are delivered and are accepted or deemed accepted by the ROFO Seller, upon the closing for the Transfer of the RFO Ordinary SharesROFO Shares shall be consummated at 9:00 a.m. Oklahoma City time on the date 30 days following the ROFO Offer Deadline, procure at the resignation Company’s principal executive offices, or at such other time, date and place as mutually agreed by the ROFO Seller and the ROFO Parties. At the closing, the purchase price shall be paid in the form of such number a cashier’s check or by wire transfer in same day funds, and the DC\1281653.10 ROFO Seller shall deliver stock certificates representing the ROFO Shares so purchased, accompanied by duly executed stock powers, free and clear of directors nominated by itall liens, if any, encumbrances and adverse claims (other than encumbrances as would be required pursuant to Section 2.2 hereofset forth in this Agreement), and such director other instruments or documents as are deemed necessary by the Company for the proper Transfer of the ROFO Shares so Transferred on the books of the Company. The Company, the ROFO Seller, and the ROFO Parties shall execute cooperate in good faith in obtaining all necessary governmental and third-party consents, approvals or waivers required for the closing. The closing may be delayed, to the extent required, until the next succeeding day following the expiration of any required waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and the obtaining of any necessary government approvals.
(d) Notwithstanding the foregoing, if the exercise by CCMP of its rights under this Section 4.9 would cause a letter “Change of resignationControl” as defined in Section 3.4(b), the period of time to consummate the transactions contemplated by this Section 4.9 can be delayed for up to 90 days to effect a refinancing of the Company’s outstanding Senior Notes as contemplated by Section 3.4(b).
Appears in 1 contract
Right of First Offer. (a) Other If any Stockholder (other than Prohibited Transfersa Sponsor) desires to Transfer all or any portion of its Company Shares in a transaction to which this Section 4.3 applies (any such Stockholder, a “ROFO Stockholder”), then each Sponsor and, until the earlier of (x) MD’s Death or Disability and (y) such time that the MD Investors have sold more than 50% of the Company Shares held by the MD Investors as of the date of this Agreement, the MD Investor (each, a “ROFO Offeree”) shall have a right of first offer over such Company Shares, which shall be exercised in the following manner:
(i) The ROFO Stockholder shall provide the ROFO Offerees with written notice (a “ROFO Notice”) of its desire to Transfer such Company Shares. The ROFO Notice shall specify the number of Company Shares the ROFO Stockholder wishes to Transfer, the proposed purchase price per share (which purchase price shall be in cash or cash equivalents only) of Company Shares and any other terms and conditions material to the sale proposed by the ROFO Stockholder;
(ii) The ROFO Offerees shall have a period of up to ten (10) Business Days following receipt of the ROFO Notice (the “ROFO Election Period”), to elect to purchase (or to cause one or more of their Affiliates to purchase), in the aggregate, all, but not less than all, of such Company Shares on the terms and conditions set forth in the ROFO Notice by delivering to the ROFO Stockholder written notice thereof (such electing ROFO Offeree, a “ROFO Purchaser”). In the event that the aggregate number of Company Shares that the ROFO Purchasers have elected to purchase exceeds the aggregate number of Company Shares subject to the ROFO Notice, the number of Company Shares shall be sold to the ROFO Purchasers as follows:
(1) there shall be first allocated to each ROFO Purchaser a number of Company Shares equal to the lesser of (A) the number of Company Shares elected to be purchased by such ROFO Purchaser and (B) a number of Company Shares equal to such ROFO Purchaser’s Pro Rata Portion; and
(2) the balance, if any, of Company Shares not allocated pursuant to clause (1) above shall be allocated to those ROFO Purchasers which offered to purchase a number of Company Shares in excess of such ROFO Purchasers’ respective Pro Rata Portions in proportion, as nearly as practicable, to the respective number of Company Shares which each ROFO Purchaser offered to purchase.
(iii) If the ROFO Offerees elect to purchase (or to cause one or more of their Affiliates to purchase) all of the Company Shares which are the subject of the proposed Transfer within the ROFO Election Period, such purchase shall be consummated within thirty (30) days after the date on which each such ROFO Offeree notifies the ROFO Stockholder of such election (subject to extension if necessary to permit the expiration or early termination of the HSR Waiting Period). Subject to Section 4.4, if the ROFO Offerees do not elect to purchase all of the Company Shares within the ROFO Election Period, the ROFO Stockholder may Transfer all of the Company Shares specified in the ROFO Notice at any time after within one hundred and twenty (120) days following such period at a price which is not less than the Lock Up Period a Shareholder desires purchase price specified in the ROFO Notice and on terms and conditions no more favorable, in any material respect, to the purchaser than those specified in the ROFO Notice, and thereafter the ROFO Stockholder may not Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (Company Shares without first following the “RFO Offeror”) fully complies with the terms of procedures set forth in this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers4.3.
(b) The RFO Offeror shall, prior to In connection with the Transfer of all or any Ordinary portion of a ROFO Stockholder’s Company Shares pursuant to this Section 4.3 to one or more ROFO Offerees, the ROFO Stockholder shall only be required to represent and warrant as to its authority to sell, the enforceability of agreements against the ROFO Stockholder, that the Company Shares to which be transferred shall be free and clear of any liens, claims or encumbrances (other than restrictions imposed by this Section 3.3 appliesAgreement and pursuant to applicable federal, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”state and foreign securities laws), setting forth (i) that it is the number record and beneficial owner of Ordinary such Company Shares proposed and that it has obtained or made all necessary consents, approvals, filings and notices from governmental authorities or third parties to be disposed of (consummate the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinTransfer.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
4.3 shall not apply to Transfers of Company Shares (fi) The RFO Offeror shallto Permitted Transferees in accordance with Section 4.2 (Permitted Transferees); (ii) pursuant to, or consequent upon the Transfer exercise of the RFO Ordinary Shares, procure drag-along rights set forth in Section 4.5 (Drag-Along Rights); (iii) consequent upon the resignation exercise of such number of directors nominated by it, if any, as would be required the tag-along rights set forth in Section 4.4 (Tag-Along Rights); (iv) pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationregistered public offering; or (v) by any Noteholder Investor.
Appears in 1 contract
Sources: Principal Investors Stockholders’ Agreement (J Crew Group Inc)
Right of First Offer. (a) Other than Prohibited TransfersUpon the Minority Shareholders receipt of the Non-Performance Exit Right Notice, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer Minority Shareholders shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase provide an offer to SGS (the “First Offer Right”) to purchase all but not less than all of SGS’s Shares. All Minority Shareholders are not required to participate, but if one or more of the Minority Shareholders choose to exercise their First Offer Right of First Offer”), any or then a Minority Shareholder authorized by all of the RFO Ordinary Shares by delivering Minority Shareholders shall deliver, on behalf of all Minority Shareholders, to SGS and the Company, within fifteen (15) days after receiving the Non-Performance Exit Right Notice, a written notice (executed by all Minority Shareholders. The written notice shall state the “RFO Exercise”) of exercise terms of the Right offer, which shall be binding on the Minority Shareholders, including the names of the Minority Shareholders that have elected to participate in the offer, the purchase price and terms pursuant to which the Minority Shareholders are willing to purchase all but not less than all of SGS’s Shares. None of the Minority Shareholders can exercise the First Offer Right until all Minority Shareholders have agreed and executed the notice delivered to the RFO Offeror within 20 (twenty) Business Days from the date of delivery SGS; provided, that those electing not to participate shall so indicate in such notice. Failure of the RFO Notice (Minority Shareholders to notify SGS of their offer to purchase all of SGS’s Shares within such 15-day period, time being of the “RFO Response Period”)essence, irrevocably stating therein shall constitute a waiver of the First Offer Right by the Minority Shareholders. If the Minority Shareholders elect to exercise their First Offer Right and SGS accepts such offer, then each participating Minority Shareholder shall purchase a pro rata portion of the RFO Ordinary SGS’s Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held owned by such RFO Offeree as a proportion of that Minority Shareholder participating in exercising First Offer Right divided by the total number of Ordinary Shares held owned by all RFO Offerees). To Minority Shareholders participating in exercising the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedFirst Offer Right.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Shareholders’ Agreement (Southern Graphic Systems, Inc.)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after Section 2.02 of the Lock Up Period a Shareholder desires to Transfer other than Lease and ▇▇▇▇▇▇’s ROFO Right thereunder shall continue in full force and effect pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of the Lease as amended by this Section 3.3; provided that Third Amendment. Notwithstanding anything to the provisions contrary contained this Third Amendment and/or contained in the Lease, but subject to the right of this Section 3.3 first offer now held and enjoyed by Addgene, Inc. under its Lease, as of the Effective Date, on any space on the first floor of the West Wing of the Building adjacent to the premises occupied by the Addgene, Inc., pursuant to its lease, Tenant’s ROFO Right shall not just apply to Permitted Transfers“any space on the second floor of the West Wing of the Building”, but instead shall apply to “any space where ever in the Building.
” Further, subpart (bii) The RFO Offeror shallof Section 2.02(a) of the Lease, prior to shall be deleted in its entirety and the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice following subpart (ii) shall be inserted in lieu thereof: “RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), …(ii) the proposed purchase price per RFO Ordinary ShareTenant named in Article 1 above (or a Related Party Transferee) is then occupying at least sixty-five percent (65%) of the rentable square footage (RSF) of the Premises for the conduct of the Permitted Uses…” In addition, Landlord and payment Tenant agree and other material terms concur that in the 22nd and conditions 23rd line of Section 2.02, the phrase and (iii) an irrevocable offer to sell wording “… the subject ROFO Space shall be leased by Tenant in its then “as is”, “where is” condition…” shall be changed and amended to the RFO Offeree(s) following phrase and wording “… the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as subject ROFO Space shall be purchaseddelivered to Tenant in its then “as is”, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shareswhere is” condition…”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Lease (C4 Therapeutics, Inc.)
Right of First Offer. Tenant shall have the right for thirty-five (a35) Other than Prohibited Transfers, if at any time after days from receipt of the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder ROFO Notice (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO NoticeExercise Period”) to each other Shareholder exclusively negotiate with Landlord and agree on a term sheet (each, an the “RFO OffereeROFO Term Sheet”), setting forth (i) signed by both Landlord and Tenant, outlining the number of Ordinary Shares proposed to be disposed of major parameters, including purchase price (the “RFO Ordinary SharesROFO Purchase Price”), (ii) of a contract of sale. During the proposed purchase price per RFO Ordinary ShareExercise Period, Landlord and payment Tenant shall negotiate in good faith the economic terms, including the ROFO Purchase Price, and other material terms and conditions upon which Tenant is prepared to purchase and (iii) an irrevocable offer Landlord is prepared to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), Premises. At any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Exercise Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter Tenant may send a written response (the “Transfer PeriodROFO Response Notice”) stating; (i) Tenant’s election to purchase the Premises upon the mutually agreed terms contained in the ROFO Term Sheet, if applicable, or (ii) Tenant’s election to decline to purchase the Premises hereunder, or (iii) Tenant’s best offer to purchase the Premises (“Tenant’s Terms”), if Landlord and Tenant, despite good faith efforts, are unable to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated agree on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with a ROFO Term Sheet by mutual agreement as per clause (i) hereof prior (“Tenant’s Terms”),, including Tenant’s best offer for a purchase price (“Tenant’s Offer Price”). If Tenant elects to purchase the consummation of such sale; and provided furtherPremises as described above, that the Transfer Period ROFO Response Notice shall not be extended following such date as necessary effective unless an ▇▇▇▇▇▇▇ money deposit is delivered to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority an agreed escrow agent in connection with such Transfers an amount equal to be obtained or made, to the extent prior to the expiration five percent (5%) of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty ROFO Purchase Price not later than three (303) days. If at the end business days after delivery of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3ROFO Response Notice.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Subsection 4.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each holder of Preferred Stock (a “Preferred Holder”). A Preferred Holder shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among itself and its Affiliates; provided that each such Affiliate (x) is not a Competitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Amended and Restated Voting Agreement and Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor or FOIA Party shall not be entitled to any rights as a Major Investor under Subsections 3.1, 3.2 and 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Preferred Holder holding the fewest number of shares of Preferred Stock and any other Derivative Securities.
(a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer The Company shall be permitted only if such Shareholder give notice (the “RFO OfferorOffer Notice”) fully complies with to each Preferred Holder, stating (i) its bona fide intention to offer such New Securities, (ii) the terms number of this Section 3.3; provided that such New Securities to be offered, and (iii) the provisions of this Section 3.3 shall not apply price and terms, if any, upon which it proposes to Permitted Transfersoffer such New Securities.
(b) The RFO Offeror shall, prior By notification to the Transfer Company within ten (10) business days after the Offer Notice is given, each Preferred Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Preferred Holder (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any Ordinary Shares other Derivative Securities then held by such Preferred Holder) bears to which this Section 3.3 appliesthe total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, give written notice as applicable, of all Preferred Stock, any other Derivative Securities then outstanding and the issuance and/or exercise of all shares reserved under the Company’s stock incentive plans). At the expiration of such ten (“RFO Notice”10) business day period, the Company shall promptly notify each Preferred Holder that elects to each other Shareholder purchase or acquire all the shares available to it (each, an a “RFO OffereeFully Exercising Investor”)) of any other Preferred Holder’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, setting forth (i) each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of Ordinary Shares proposed shares specified above, up to be disposed that portion of (the “RFO Ordinary Shares”), (ii) New Securities for which Preferred Holders were entitled to subscribe but that were not subscribed for by the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell Preferred Holders which is equal to the RFO Offeree(sproportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the RFO Ordinary Shares set forth in Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the RFO Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Subsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice at is given and the same price per Ordinary Share and on the same terms and conditions as set forth thereindate of initial sale of New Securities pursuant to Subsection 4.1(c).
(c) The RFO Offeree(s) collectively shall have If all New Securities referred to in the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof are not elected to be purchased by each RFO Offeree or acquired as provided in Subsection 4.1(b), the Company may, during the ninety (or such Affiliate(s)). Each RFO Offeree shall have 90) day period following the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion expiration of the number periods provided in Subsection 4.1(b), offer and sell the remaining unsubscribed portion of Ordinary Shares held by all RFO Offerees)such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. To If the extent any RFO Offeree Company does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all enter into an agreement for the sale of its pro rata portion of RFO Ordinary Sharesthe New Securities within such period, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there such agreement is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares not consummated within thirty (30) days thereafter upon of the terms set forth in execution thereof, the RFO Notice; provided, however, that such period right provided hereunder shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase deemed to be obtained or made, revived and such New Securities shall not be offered unless first reoffered to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysPreferred Holders in accordance with this Subsection 4.1.
(ed) If the RFO Offeree(s) The right of first offer in this Subsection 4.1 shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed be applicable to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified Exempted Securities (as defined in the RFO Notice Certificate of Incorporation); and (ii) shares of Common Stock issued in the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3IPO.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Aligos Therapeutics, Inc.)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires Subject to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms and conditions of this Section 3.3; 4.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Investor, provided that the provisions Board of Directors has not reasonably determined that such Investor is a Competitor of the Company. An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate, provided that each such Affiliate (x) is not a Competitor of the Company as reasonably determined by the Board of Directors, and (y) agrees to enter into this Section 3.3 shall not apply to Permitted TransfersAgreement and the Stockholders Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement.
(b) The RFO Offeror shallNotwithstanding anything to the contrary herein, for so long as TRV is deemed an Investor, TRV shall have the right to apportion its right of first offer of New Securities pursuant to Section 4.1(a) among itself, its Affiliates, and such unaffiliated third parties as TRV reasonably deems appropriate (each such Affiliate or unaffiliated third party, a “Permitted TRV Transferee”), provided that each such Permitted TRV Transferee (x) is not a Competitor of the Company as reasonably determined by the Board of Directors, and (y) agrees to enter into or join this Agreement and any other stockholder agreement with the Company that TRV is party to or would become a party to if it exercised its right of first offer, as an “Investor” under each such agreement. TRV shall provide the Company with advanced written notice of any such apportionment of rights to a Permitted TRV Transferee prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares deadline set forth in Section 4.1(d) by which TRV is required to notify the RFO Notice at Company of TRV’s or its Permitted TRV Transferees’, as applicable, intention to exercise its right of first offer with respect to a given issuance of New Securities, and TRV and the same price per Ordinary Share and on Permitted TRV Transferee shall provide the same terms and conditions Company with such other information as set forth thereinthe Company reasonably requests in connection with such apportionment of rights to such Permitted TRV Transferee.
(c) The RFO Offeree(s) collectively Company shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written give notice (the “RFO ExerciseOffer Notice”) of exercise of the Right of First Offer to the RFO Offeror within 20 each Investor, stating (twentyi) Business Days from the date of delivery of the RFO Notice its bona fide intention to offer such New Securities, (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(sii) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish New Securities to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)offered, and (iii) the price and terms, if any, upon which it proposes to offer such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedNew Securities.
(d) By notification to the Company within twenty (20) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Investor (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held by such Investor) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). At the expiration of such twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which such Investors were entitled to subscribe, but that were not subscribed for by the Investors, which is equal to the proportion that the Common Stock issued and held, or issuable upon conversion of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4.1(b) shall occur within the later of one hundred twenty (120) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 4.1(c).
(e) If fewer than all New Securities referred to in the Offer Notice are elected to be purchased or acquired as provided in Section 4.1(d), the Company may, during the ninety (90) day period following the expiration of the periods provided in Section 4.1(d), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the RFO Offeree(s) shall have delivered Company does not enter into an RFO Exercise to the RFO Offeror within the RFO Response Period agreement for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares New Securities within such period, or if such agreement is not consummated within thirty (30) days thereafter upon of the terms set forth execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 4.1.
(f) The right of first offer in this Section 4.1 shall not be applicable to (i) Exempted Securities (as defined in the RFO NoticeCertificate of Incorporation), and (ii) shares of Common Stock issued in the IPO.
(g) The rights of the Investors to purchase New Securities under this Section 4.1 may be modified or waived in accordance with Section 6.6; provided, however, that in the event such period rights to purchase New Securities under this Section 4.1 are waived and any Investor(s) purchase New Securities, the Company shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, give notice to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares other Investors within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) daysdays after the initial issuance of New Securities. If at Such notice shall describe the end type, price, and terms of the Transfer PeriodNew Securities. Each such other Investor shall have twenty (20) days from the date such notice is given to elect to purchase on similar terms and conditions in a subsequent closing up to the number of New Securities that would, if purchased by such Investor, maintain such Investor’s percentage-ownership position, calculated as extended as provided herein, set forth in Section 4.1(d) before giving effect to the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose issuance of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3New Securities.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Maze Therapeutics, Inc.)
Right of First Offer. (a) Other than Prohibited TransfersSubject to and excluding other permitted transfers set forth in Section 4.1(a) for any transfers made pursuant to an offering of equity securities registered under the Securities Act, if at Section 4.3 pursuant to a sale in which the Sellers are exercising such drag-along rights, Section 4.5 and Section 4.7, in the event ▇▇▇▇▇▇▇ or Chesapeake or any time after Permitted Transferee who has acquired shares of Common Stock from such party (the Lock Up Period a Shareholder “ROFO Seller”) desires to Transfer shares of Common Stock owned by it to any Person other than (i) a Permitted Transferee or (ii) pursuant to any Permitted Transfera Demand Request in accordance with Section 5.1(b), such Transfer shall be permitted only if such Shareholder the ROFO Seller hereby agrees to notify in writing (the “RFO OfferorROFO Notice”) fully complies with each of the stockholder Parties that is not a ROFO Seller (the “ROFO Parties”) and the Company, of: (A) its desire to Transfer such shares of Common Stock, (B) the number of shares proposed to be Transferred (the “ROFO Shares”) and (C) the price at which the ROFO Seller is willing to sell the ROFO Shares (the “ROFO Notice Price”), and (D) other terms of this Section 3.3; provided that such proposed sale. The ROFO Seller(s) will negotiate in good faith for a period of not less than 21 days after the provisions date of this Section 3.3 the ROFO Notice with any ROFO Parties who express an interest in acquiring the ROFO Shares. The ROFO Parties shall be entitled, but not apply required, within 21 days after the delivery date of the ROFO Notice, to Permitted Transfersdeliver a cash offer notice (an “ROFO Offer Notice”) to the ROFO Seller of their offer for all, or any portion, of the ROFO Shares set forth in the ROFO Notice. If any ROFO Offer Notice is accepted by the ROFO Seller, each ROFO Party timely delivering a ROFO Offer Notice shall have the right to acquire a pro rata number of ROFO Shares based on the relative number of shares of Common Stock then owned by all of the ROFO Parties timely delivering a ROFO Offer Notice.
(b) The RFO Offeror shallUnless the ROFO Seller and the ROFO Parties otherwise agree, in the event ROFO Offer Notices at least equal to the ROFO Notice Price are not delivered to the ROFO Seller on or prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) date 21 days after the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all delivery date of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO ROFO Notice (the “RFO Response PeriodROFO Offer Deadline”), irrevocably stating therein such portion of the RFO Ordinary Shares as offer shall be purchaseddeemed rejected with respect to such ROFO Shares so offered, collectivelyand, by at any time within 120 days after the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and ROFO Offer Deadline, the proportion thereof ROFO Seller shall be entitled to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall sell any ROFO Shares not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror Transferred pursuant to the other RFO Offeree(s) (ROFO Offer Notices for a cash price equal to or if there is more greater than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to ROFO Notice Price. After the expiration of such 120-day period, if the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall ROFO Seller has not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided hereinsold, the RFO Offeror has ROFO Seller may not completed Transfer the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary ROFO Shares without complying again fully complying with the provisions of this Section 3.34.9.
(fc) The RFO Offeror shallTo the extent ROFO Offer Notices are delivered and are accepted or deemed accepted by the ROFO Seller, upon the closing for the Transfer of the RFO Ordinary SharesROFO Shares shall be consummated at 9:00 a.m. Oklahoma City time on the date 30 days following the ROFO Offer Deadline, procure at the resignation Company’s principal executive offices, or at such other time, date and place as mutually agreed by the ROFO Seller and the ROFO Parties. At the closing, the purchase price shall be paid in the form of such number a cashier’s check or by wire transfer in same day funds, and the ROFO Seller shall deliver stock certificates representing the ROFO Shares so purchased, accompanied by duly executed stock powers, free and clear of directors nominated by itall liens, if any, encumbrances and adverse claims (other than encumbrances as would be required pursuant to Section 2.2 hereofset forth in this Agreement), and such director other instruments or documents as are deemed necessary by the Company for the proper Transfer of the ROFO Shares so transferred on the books of the Company. The Company, the ROFO Seller, and the ROFO Parties shall execute a letter cooperate in good faith in obtaining all necessary governmental and third-party consents, approvals or waivers required for the closing. The closing may be delayed, to the extent required, until the next succeeding day following the expiration of resignationany required waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and the obtaining of any necessary government approvals; provided, that such delay shall not exceed 45 days, and if governmental approvals and waiting periods shall not have been obtained or expired, as the case may be, by such 45th day, then the relevant ROFO Offer Notice shall be deemed to have been rejected and neither the ROFO Seller nor the ROFO Parties shall have any further obligation with respect to such ROFO Offer Notice.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited Transfers, if at At any time after and from time to time during the Lock Up Period Standstill Period, and subject to the terms and conditions specified in this Section 11.1, the Purchaser shall have a Shareholder desires right of first offer if any Seller (the "Offering Seller") proposes to Transfer other than pursuant to all or any Permitted Transfer, such Transfer shall be permitted only if such Shareholder portion of any shares of common stock of the Purchaser that the Seller owns (the “RFO OfferorOffered Stock”) fully complies to any independent third party. Each time the Offering Seller proposes to Transfer any Offered Stock (other than Transfers set forth in clauses (i) and (ii) of Permitted Transfers), the Offering Seller shall first make an offering of the Offered Stock to the Purchaser in accordance with the terms of this Section 3.3; provided that the following provisions of this Section 3.3 shall not apply to Permitted Transfers11.1.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, Offering Seller shall give written notice (the “RFO ROFO Notice”, which may be in the form of an email) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the Purchaser stating its bona fide intention to Transfer the Offered Stock and specifying the number of Ordinary Shares proposed to be disposed of (Offered Stock and the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable conditions, including the price, pursuant to which the Offering Seller proposes to Transfer the Offered Stock. The ROFO Notice shall constitute a Seller’s offer to sell Transfer all of the Offered Stock to the RFO Offeree(s) Purchaser in accordance with the RFO Ordinary Shares set forth in provisions of this Section 11.1, which offer shall be irrevocable until the RFO Notice at end of the same price per Ordinary Share ROFO Purchaser Option Period (defined below), and on the same terms and conditions as set forth thereinconsummation of any sale of the Offered Stock to the Purchaser.
(c) The RFO Offeree(s) collectively ROFO Notice shall have the right constitute a Seller’s offer to purchase (the “Right of First Offer”), any or Transfer all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer Offered Stock to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, Purchaser in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying accordance with the provisions of this Section 3.311.1, which offer shall be irrevocable until the end of the Purchaser Option Period, and the consummation of any sale of the Offered Stock to the Purchaser.
(fd) The RFO Offeror shallBy delivering the ROFO Notice, upon a Seller represents and warrants to the Purchaser that:
(i) Seller has full right, title and interest in and to the Offered Stock described in the ROFO Notice;
(ii) Seller has all the necessary power and authority and has taken all necessary action to Transfer the Offered Stock described in the ROFO Notice as contemplated by this Section 11.1; and
(iii) the Offered Stock described in the ROFO Notice is free and clear of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, any and such director shall execute a letter of resignationall Liens.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited Transfers, if at If any time after the Lock Up Period a Shareholder desires proposes to Transfer other than pursuant to any Permitted TransferShares held by it in the Company, such Transfer each of the Series A Preferred Shareholders shall be permitted only if such Shareholder have a right of first offer (the “RFO OfferorFirst Offer Right”) fully complies with the terms of respect to such Transfer as provided in this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transferssubclause 12.4.
(b) The RFO Offeror shallIf any Shareholder (the “Transferor”) proposes to Transfer any Shares held by it in the Company or any interest herein, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give Transferor shall send a written notice (the “RFO Transfer Notice”) to each the Series A Preferred Shareholders, which notice shall state:
(i) the name of the Transferor;
(ii) the type and number of the Shares in the Company to be Transferred (the“Sale Shares”);
(iii) the price that the Transferor is prepared to accept for the Sale Shares (the“Sale Price”); and
(iv) the other Shareholder terms and conditions of the proposed Transfer.
(each, an c) For a period of fifteen (15) Business Days from date of their receipt of the Transfer Notice (the “RFO OffereeOffer Period”), setting the Series A Preferred Shareholders shall have the right, exercisable through the delivery of an Acceptance Notice as provided in subclause 12.4(d) to purchase any or all of the Sale Shares at a purchase price equal to the Sale Price (calculated on a pro rata basis if the other SeriesA Preferred Shareholders are also purchasing all the Sale Shares) and upon the other material terms and conditions set forth in the Transfer Notice. Each of the Series A Preferred Shareholders shall have the right to purchase a number of Sale Shares (such Shareholder’s “First Offer Allocation”) equal to the total number of Sale Shares multiplied by a fraction, the numerator of which is the number of Ordinary Shares held by or issuable to such Series A Preferred Shareholders and the denominator of which is the total number of Ordinary Shares held by or issuable to all Series A Preferred Shareholders, in each case on an as-converted but otherwise non-diluted basis. In addition, in the event that one or more other Series A Preferred Shareholders (“Non-Electing Offerees”) declines or is deemed pursuant to subclause 12.4(d) to have waived its First Offer Right, each other Series A Preferred Shareholder electing to exercise its First Offer Right (an “Electing Recipient”) shall have the right to purchase all or a portion of the Sale Shares constituting the aggregate First Offer Allocations of the Non-Electing Offerees (the “Excess Sale Shares”) (the “Excess Sale Shares Allocation”).
(d) The First Offer Right of each Series A Preferred Shareholder under subclause 12.4(c) shall be exercisable by delivering a written notice of exercise (an “Acceptance Notice”) within the Offer Period to the Transferor, with a copy to each of the other Shareholders. Each Acceptance Notice shall include a statement of (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by or issuable to such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its whollySeries A Preferred Shareholder on an as-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be reconverted but otherwise non-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.diluted basis and
Appears in 1 contract
Sources: Subscription Agreement
Right of First Offer. (a) Other A Shareholder Group (the “Seller”) which desires to sell all or any part of the Shares or Related Shares held by the Seller (provided that any sale of a part of Seller’s holdings must be for Shares representing not less than Prohibited Transfers, if 10% of the outstanding Shares or Related Shares) at any time after during which the Lock Up Hold Period a is not in effect shall first offer to sell such Shares or Related Shares to the other Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Group (the “RFO OfferorOther Shareholder”) fully complies ). Any such sale of Shares is subject to any pledges, charges, mortgages or other encumbrances granted to banks or other lenders in connection with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted TransfersProject Debt Financing.
(b) The RFO Offeror shall, prior to Notice of the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice offer (the “RFO Notice”) shall be sent to each other Shareholder (eachthe Other Shareholders, an “RFO Offeree”), setting forth (i) shall set out the number of Ordinary Shares proposed or Related Shares that the Seller desires to be disposed of sell (the “RFO Ordinary Seller’s Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable shall irrevocably offer to sell the Seller’s Shares for cash, to the RFO Offeree(s) Other Shareholders at the RFO Ordinary Shares price set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinNotice.
(c) The RFO Offeree(s) collectively Upon the Notice being given, the Other Shareholder shall have the right to accept the offer to purchase (the “Right of First Offer”)in accordance with such Notice all, any or all but not less than all, of the RFO Ordinary Seller’s Shares by delivering a written notice (during the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion Period (as nearly as may be) to the number of Ordinary Shares held by them inter sedefined below), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) Within 40 Business Days of having been given the Notice (the “Offer Period”) the Other Shareholder may give to the Seller a notice in writing (an “Acceptance Notice”) accepting the offer contained in the Notice. If the RFO Offeree(s) shall have delivered an RFO Exercise Other Shareholder is willing to purchase all of the RFO Offeror within the RFO Response Period for all the RFO Ordinary Seller’s Shares, the RFO Offeror transaction of purchase and RFO Offeree(s) sale shall be respectively bound, and shall complete the sale and purchase completed within 40 Business Days of the RFO Ordinary Shares within thirty (30) days thereafter upon expiry of the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary Offer Period subject to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, extension to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) necessary to obtain such required regulatory approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall Other Shareholder does not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided give notice in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying accordance with the provisions of Section that it is willing to purchase all of the Seller’s Shares, the rights of the Other Shareholders to purchase the Seller’s Shares shall cease and the Seller may sell the Seller’s Shares to any Person or Persons within 120 days after the expiry of the Offer Period, subject to extension for up to 30 days to the extent necessary to obtain required regulatory approvals and for a price and on other terms no more favourable to such Persons than those set out in the Notice, provided that prior to or concurrent with such sale:
(1) the Other Shareholder consents to such Person or Persons becoming a Shareholder, such consent not to be unreasonably withheld; and
(2) such Person or Persons agree to be bound by the terms of this Agreement and enter into an agreement with the Other Shareholder and the Corporation in respect thereof, all in form and on terms satisfactory to the Other Shareholder, acting reasonably. If the Seller’s Shares are not sold within the 120 day period, subject to extension for up to 30 days to the extent necessary to obtain required regulatory approvals, the rights of the Other Shareholder pursuant to this Section 3.3shall again take effect with respect to any sale of Shares of the Seller, and so on from time to time.
(f) The RFO Offeror shallNotwithstanding the provisions of Section , upon the Transfer before consenting to any transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required Seller’s Shares to any other Person pursuant to the provisions of this Section, the Other Shareholder shall be entitled to require proof that the transfer was completed at a price and on other terms no more favourable to such Person than those that would have been applicable had the Other Shareholder agreed to purchase the Seller’s Shares.
(g) All Notices, Acceptance Notices or other notices given under this Section 2.2 hereof, shall be given concurrently to the Shareholders and such director shall execute a letter of resignationto the Corporation.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited Transfers, if Should the board of directors of Valero GP determine at any time after the Lock Up Period Closing Date (either throu▇▇ ▇▇ ▇▇▇olicited bona fide offer from a Shareholder desires to Transfer other than pursuant to Person that is not an Affiliate of the Valero Group (a "Third Party Offer") or through an offer solicited by any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (of the “RFO Offeror”MLP Parties) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth it is in the RFO Notice at best interests of the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right MLP Parties to purchase (the “Right of First Offer”), divest any or all of the RFO Ordinary Shares by delivering a written notice Tank Assets (the “RFO Exercise”"Offered Assets"), Valero GP shall promptly notify VRC of such determination and delive▇ ▇▇ ▇▇▇ all information prepared by or on behalf of Valero GP relating to the potential divestiture. As soon as practica▇▇▇ ▇▇▇ ▇n any event within 30 days after receipt of such notification and information, VRC shall notify Valero GP that either (a) of exercise VRC has elected not to pursue the opportun▇▇▇ ▇▇ ▇▇quire the Offered Assets, in which case the MLP shall be free to offer and divest the Offered Assets to (1) the Person that initiated the Third Party Offer (the "Third Party Offeror") or (2) a Person that is not an Affiliate of the Right of First Valero Group (a "NonAffiliate Purchaser"), or (b) VRC has elected to pursue the opportunity to acquire the Offered Assets, in which event the following procedures shall be followed:
(i) VRC shall submit a good faith offer to Valero GP to acquire the Offered Assets (the "Offer") on th▇ ▇▇▇▇▇ ▇nd for the consideration stated in the Offer;
(ii) VRC and Valero GP shall negotiate in good faith for 90 days after r▇▇▇▇▇▇ ▇▇ such Offer to by Valero GP, the RFO Offeror within 20 (twenty) Business Days from terms on which the date of delivery Offered Assets will be ac▇▇▇▇▇▇ ▇▇ VRC. Valero GP shall provide all information concerning the oper▇▇▇▇▇▇ ▇▇d finances of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly Offered Assets as may be) to the number of Ordinary Shares held be reasonably requested by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedVRC.
(dA) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror VRC and Valero GP agree on such terms within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase 90 days after ▇▇▇ ▇▇▇▇ipt by Valero GP of the RFO Ordinary Shares within thirty (30) days thereafter upon Offer, VRC shall acquire the Offe▇▇▇ ▇▇▇▇▇s on such terms set forth in the RFO Noticeafter such agreement has been reached; provided, however, that the acquisition consideration to be paid by VRC may not be less than the acquisition consideration offered in the Third Party Offer.
(B) If VRC and Valero GP are unable to agree on the terms of an a▇▇▇▇▇▇▇▇▇n during such 90-day period, the MLP is free to divest the Offered Assets to (1) the Third Party Offeror within 180 days of the termination of such 90-day period; provided that such Third Party Offer is not less than 95% of the acquisition consideration last offered by VRC or (2) a NonAffiliate Purchaser; provided that any such divestiture to a NonAffiliate Purchaser must be for an acquisition consideration of not less than 95% of the acquisition consideration last offered by VRC and on the same material terms and conditions as last offered by VRC; provided, further, that if such NonAffiliate Purchaser shall offer less than 95% of the acquisition consideration last offered by VRC or offer to purchase the Tank Assets on terms and conditions materially less favorable to the MLP than those last offered by VRC, the MLP must first give VRC notice and a right to match the offer from the NonAffiliate Purchaser during a 15-day period after notification of same from MLP to VRC.
(C) During such 90-day period Valero GP shall be extended following such date as necessary free to permit all required approvalsmake capital expenditur▇▇ ▇▇ ▇▇▇ntain the Offered Assets.
(iii) If, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to after the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by 180-day period referred to in clause (ii)(B) above, no NonAffiliate Purchaser or Third Party Offeror has acquired the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; Offered Assets and provided further Valero GP confirms its determination that no such extension shall exceed 60 days.
(e) If it is in the RFO Offeree(s) shall not have completed the purchase of all best ▇▇▇▇▇▇▇▇s of the RFO Ordinary Shares within MLP Parties to divest the RFO Purchase PeriodOffered Assets, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror Valero GP shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.SECTION ▇(▇) ▇▇▇▇ again; provided that if Valero GP and VRC are unable to reach agreement during the ▇▇-▇▇▇ ▇▇riod referenced in clause (ii)(B) above, the parties will engage an independent investment banking firm of national reputation to determine the value of the Offered Assets and shall furnish VRC and Valero GP with its opinion of such value within 30 days of ▇▇▇ ▇▇▇▇▇ement. VRC and Valero GP shall share equally the fees and expenses of such ▇▇▇▇▇▇▇▇nt banking firm. Upon receipt of such opinion, Valero GP will have the option to
(fA) The RFO Offeror shall, upon ca▇▇▇ ▇▇▇ ▇LP to divest the Transfer Offered Assets for an amount equal to the value as determined by such investment banking firm on terms substantially similar to the relevant terms of this Agreement or
(B) decline to divest the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationOffered Assets.
Appears in 1 contract
Sources: Contribution Agreement (Valero L P)
Right of First Offer. (a) Other than Prohibited Transfers, if at If any time after the Lock Up Period a Shareholder Manager desires to Transfer other than pursuant to all or any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms portion of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary its Company Shares in a transaction to which this Section 3.3 applies4.1 applies (any such Manager, give a “ROFO Stockholder”), then each Principal Investor and, until the earlier of (x) MD’s Death or Disability and (y) such time that the MD Investors have sold more than 50% of the Company Shares held by the MD Investors as of the date of this Agreement, the MD Investor (each, a “ROFO Offeree”) shall have a right of first offer over such Company Shares, which shall be exercised in the following manner:
4.1.1. The ROFO Stockholder shall provide the ROFO Offerees with written notice (a “RFO ROFO Notice”) of its desire to each other Shareholder (each, an “RFO Offeree”), setting forth (i) Transfer such Company Shares. The ROFO Notice shall specify the number of Ordinary Company Shares proposed the ROFO Stockholder wishes to be disposed of (the “RFO Ordinary Shares”)Transfer, (ii) the proposed purchase price per RFO Ordinary Share, share (which purchase price shall be in cash or cash equivalents only) for the Company Shares and payment and any other material terms and conditions and (iii) an irrevocable offer to sell material to the RFO Offeree(ssale proposed by the ROFO Stockholder.
4.1.2. The ROFO Offerees shall have a period of up to ten (10) Business Days following receipt of the RFO Ordinary ROFO Notice (the “ROFO Election Period”), to elect to purchase (or to cause one or more of their Affiliates to purchase), in the aggregate, all, but not less than all, of such Company Shares on the terms and conditions set forth in the RFO ROFO Notice at by delivering to the same price per Ordinary Share ROFO Stockholder written notice thereof (such electing ROFO Offeree, a “ROFO Purchaser”). In the event that the aggregate number of Company Shares that the ROFO Purchasers have elected to purchase exceeds the aggregate number of Company Shares subject to the ROFO Notice, the number of Company Shares shall be sold to the ROFO Purchasers as follows:
(a) there shall be first allocated to each ROFO Purchaser a number of Company Shares equal to the lesser of (A) the number of Company Shares elected to be purchased by such ROFO Purchaser and on (B) a number of Company Shares equal to such ROFO Purchaser’s Pro Rata Portion; and
(b) the same terms and conditions balance, if any, of Company Shares not allocated pursuant to clause (a) above shall be allocated to those ROFO Purchasers which offered to purchase a number of Company Shares in excess of such ROFO Purchasers’ respective Pro Rata Portions in proportion, as set forth thereinnearly as practicable, to the respective number of Company Shares which each ROFO Purchaser offered to purchase.
(c) The RFO Offeree(s) collectively shall have If the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, ROFO Offerees elect to purchase (or to cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number one or more of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) their Affiliates to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary the Company Shares (which are the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect subject of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror proposed Transfer within the RFO Response Period for all the RFO Ordinary SharesROFO Election Period, the RFO Offeror and RFO Offeree(s) such purchase shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares consummated within thirty (30) days thereafter upon after the terms set forth in date on which each such ROFO Offeree notifies the RFO Notice; provided, however, that ROFO Stockholder of such period shall be extended following such date as election (subject to extension if necessary to permit the expiration or early termination of the HSR Waiting Period). Subject to Section 4.2, if the ROFO Offerees do not elect to purchase all required approvalsof the Company Shares within the ROFO Election Period, consents or authorizations fromthe ROFO Stockholder may Transfer all of the Company Shares specified in the ROFO Notice at any time within one hundred and twenty (120) days following such period at a price which is not less than the purchase price specified in the ROFO Notice and on terms and conditions no more favorable, or filings or registrations with, in any Governmental Authority in connection with such purchase to be obtained or madematerial respect, to the extent prior to purchaser than those specified in the expiration of ROFO Notice, and thereafter the RFO Purchase Period reasonably appropriate actions have been taken by ROFO Stockholder may not Transfer any such Company Shares without first following the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions procedures set forth in this Article III; provided, however, that (i) such Section 4.1.
4.1.3. In connection with the Transfer of all or any portion of a ROFO Stockholder’s Company Shares pursuant to this Section 4.1 to one or more ROFO Offerees, the RFO Ordinary Shares is consummated on terms not more favorable ROFO Stockholder shall only be required to represent and warrant as to its authority to sell, the purchasers thereof than enforceability of agreements against the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided furtherROFO Stockholder, that the Transfer Period Company Shares to be transferred shall be extended following free and clear of any liens, claims or encumbrances (other than restrictions imposed by this Agreement and pursuant to applicable federal, state and foreign securities laws), that it is the record and beneficial owner of such date as Company Shares and that it has obtained or made all necessary to permit all required consents, approvals, consents filings and notices from governmental authorities or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers third parties to be obtained or made, to consummate the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) daysTransfer.
4.1.4. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the The provisions of this Section 3.3.
4.1 shall not apply to Transfers of Company Shares (fi) The RFO Offeror shallto Permitted Transferees in accordance with Section 3.2 (Permitted Transferees); (ii) pursuant to, or consequent upon the Transfer exercise of the RFO Ordinary Shares, procure drag-along rights set forth in Section 4.3 (Drag-Along Rights); (iii) consequent upon the resignation exercise of such number of directors nominated by it, if any, as would be required the tag-along rights set forth in Section 4.2 (Tag-Along Rights); (iv) pursuant to Section 2.2 hereof, 5 (Options to Purchase and such director shall execute Sell Shares) or (v) pursuant to a letter of resignationregistered public offering.
Appears in 1 contract
Sources: Management Stockholders’ Agreement (J Crew Group Inc)
Right of First Offer. (a) Other Notwithstanding the provisions of Section 12.1 to the contrary, but subject to the provisions of Section 12.3, the Americana Partners may Transfer all, but not less than Prohibited Transfersall, if at any time after the Lock Up Period a Shareholder desires to Transfer other than of their Interest, pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers12.2.
(ba) The RFO Offeror shallIf at any time during the Call Period, prior the Americana Partners have not received a bona fide written offer from a Person not Affiliated with the Americana Partners to acquire all (and not less than all) of their Interest (for all purposes of Section 12, such Interests of the Americana Partners shall be determined on a collective basis) at a price greater than the Call Option Price, Integrated has not furnished a Call Notice pursuant to Section 12.1, and the Americana Partners desire to Transfer all, but not less than all, of any Ordinary Shares their Interest (the "ROFO Interest"), the Americana Partners shall provide written notice of such desire to Integrated ("ROFO Notice"), which notice shall state that the Americana Partners desire to Transfer all of their Interest in accordance with this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share12.2, and payment and other material terms and conditions and (iii) such ROFO Notice shall constitute an irrevocable offer to sell the entire ROFO Interest to Integrated at a price equal to the RFO Offeree(s) Call Option Price. Integrated shall have the RFO Ordinary Shares irrevocable and exclusive option to acquire the ROFO Interest on the terms and conditions set forth in this Section 12.2(a). The option of Integrated to purchase the RFO ROFO Interest shall be exercised by delivery of a written notice (the "Response Notice") to the Americana Partners and the Partnership within [ORIGINAL TEXT REDACTED] following receipt of the ROFO Notice at (the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively "ROFO Option Period"). Integrated shall have the right to purchase (the “Right of First Offer”ROFO Interest for a price equal to the Call Option Price. If Integrated elects to acquire the ROFO Interest pursuant to this Section 12.2(a), any then at the closing of such Transfer, Integrated shall deliver by a certified or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer bank's cashier's check, cash or wire transfer, an amount equal to the RFO Offeror within 20 (twenty) Business Days from Call Option Price to the date of Americana Partners against the simultaneous delivery of the RFO Notice (the “RFO Response Period”)ROFO Interest, irrevocably stating therein free and clear of all liens, charges, pledges and other encumbrances and accompanied by transfer powers duly endorsed for transfer, any and all documentation evidencing such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), ROFO Interest and such other RFO Offeree(s) may accept documentation as reasonably requested by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) Integrated. If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Integrated did not deliver a Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent Notice prior to the expiration of the RFO Purchase ROFO Option Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase within [ORIGINAL TEXT REDACTED] of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the ROFO Option Period the Americana Partners obtain a bona fide written offer from a Person not Affiliated with the Americana Partners to acquire all of its Interest and notifies Integrated in writing of such proposed Transfer Period reasonably appropriate actions have been taken by (a "Third Party Offer"), then the RFO Offeror Americana Partners may Transfer the ROFO Interest subject to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) daysthe provisions of Section 12.3. If at ninety (90) days after the end expiration of the Transfer Period, as extended as provided herein, ROFO Option Period the RFO Offeror has Americana Partners have not completed received a bona fide written offer from a Person not Affiliated with the Transfer Americana Partners and have not notified Integrated of the RFO Ordinary Sharessame, the RFO Offeror shall no longer then any such Transfer will again be permitted subject to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.312.2 and the Americana Partners shall be required to deliver a new ROFO Notice in connection therewith.
(fb) The RFO Offeror shallIf prior to sending a ROFO Notice to Integrated pursuant to Section 12.2(a) or after the expiration of ninety (90) days after a ROFO Option Period, upon Integrated has not furnished a Call Notice pursuant to Section 12.1 and the Americana Partners have obtained a Third Party Offer to purchase the ROFO Interest at a price greater than the Call Option Price, then any Transfer of the RFO Ordinary SharesROFO Interest by the Americana Partners shall be subject to the provisions of Section 12.3, procure without first having to comply with the resignation provisions of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation12.2(a).
Appears in 1 contract
Sources: Limited Partnership Agreement (Coolbrands International Inc)
Right of First Offer. Provided that no Default has occurred and is continuing with respect to Tenant at the time of its exercise of this First Offer Right, Landlord hereby grants to Tenant the on-going option to lease, upon the terms and conditions hereinafter set forth, all or a portion of certain space in the Office Tower located on same elevator bank as the Premises are located (as more particularly described and attached hereto as Exhibit A-1) and, from and after the third (3rd) anniversary of the Commencement Date, all or a portion of the space located on the high-rise elevator bank of the Office Tower (collectively, "Offer Area #1") when it becomes "available for leasing" (as determined in accordance with subsection (a) Other than Prohibited Transfersbelow) during the Term of the Lease, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall as it may be permitted only if such Shareholder extended (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers"First Offer Right").
(ba) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as Offer Area #1 shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period be "available for all the RFO Ordinary Sharesleasing" upon, and only upon, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase occurrence of one of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.events:
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer portion of the RFO Ordinary Shares Offer Area #1 is consummated on terms not more favorable subject to the purchasers thereof than the terms specified in the RFO Notice and an Existing Lease (as hereinafter defined);
(ii) if such portion of Offer Area #1 is subject to a right or option granted in an Existing Lease (whether to extend/renew or to expand), all of which rights or options are not exercised, the RFO Offeror provides written confirmation to expiration or termination of the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation last of such saleunexercised right or option; and provided furtherand
(iii) if such portion of Offer Area #1 is subject to a right or option granted in an Existing Lease (a) which right or option is exercised, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration or termination of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose term of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.Existing Lease or any later
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder If KDIC desires to Transfer other than all or any portion of the RCPS or any SFG common shares issued pursuant to the conversion of any Permitted Transfer, such Transfer shall be permitted only if such Shareholder RCPS (the “RFO Offeror”"Offered Shares") fully complies with then SFG shall have the right of first offer to purchase all (but not part only) of the Offered Shares, upon the terms of this Section 3.3; provided that and subject to the provisions of this Section 3.3 shall not apply to Permitted Transfersconditions hereinafter provided.
(b) The RFO Offeror shall, prior Prior to the any proposed Transfer of any Ordinary the Offered Shares, KDIC shall deliver to SFG a written bona fide offer to sell the Offered Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) SFG stating separately the number of Ordinary Shares proposed RCPS or any SFG common shares issued pursuant to the conversion of any RCPS to be disposed transferred and the prices for each class of shares and terms for such Transfer (a "Transfer Notice"). Subject to any confidentiality obligations, KDIC shall provide in the Transfer Notice the identity of any potential purchaser of the Offered Shares existing at the time of the Transfer Notice; provided, that, if KDIC is subject to confidentiality obligations, KDIC shall state in the Transfer Notice that a potential purchaser exists without identifying the potential purchaser.
(c) SFG shall have a period of 30 days after receipt of the Transfer Notice (the “RFO Ordinary Shares”), (ii"Exercise Period") the proposed within which to elect to purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary such Offered Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively in the Transfer Notice, which election shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares be made by delivering a an irrevocable written notice (delivered to KDIC. The failure of SFG to give such notice within the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as Exercise Period shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedbe a waiver of SFG's rights under Subsection 9.04(a).
(d) If The closing of any purchase of Offered Shares by SFG shall be held at such time and place as the RFO Offeree(s) shall have delivered an RFO Exercise parties to the RFO Offeror within the RFO Response Period for transaction may agree. At such closing, all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, parties to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain transaction shall execute such approvals, consents additional documents as are otherwise necessary or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysappropriate.
(e) If the RFO Offeree(s) shall SFG has not have completed the exercised its right to purchase of all of the RFO Ordinary Offered Shares within the RFO Purchase Exercise Period, as extended as provided in Section 3.3(d), KDIC may sell all or together have failed to deliver RFO Exercises within the RFO Response Period for all any part of the RFO Ordinary Offered Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms other person not more favorable to the purchasers thereof later than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such 90th date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to after the expiration of the Exercise Period (the "Free Sale Period"); provided, that KDIC shall not Transfer Period reasonably appropriate actions have been taken by the RFO Offeror Offered Shares to obtain such approvalsany third party on terms and conditions (including, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30the price) days. If at the end of more favorable than those set forth in the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Notice received by SFG.
(f) The RFO Offeror shallNotwithstanding anything to the contrary, any Transfer contemplated by this Section 9.05 shall be subject to Government Approval, if required. If necessary, the Exercise Period and/or the Free Sale Period referred to in Subsection 9.04(b) and (e) above shall be extended until such Government Approval has been obtained or officially and finally denied.
(g) If the Offered Shares are not Transferred to third parties upon the Transfer terms established herein and within the Free Sale Period, then the Offered Shares shall automatically become subject once more to the terms of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, this Section 9 as if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationsaid Offered Shares had never before been offered for Transfer.
Appears in 1 contract
Sources: Investment Agreement (Shinhan Financial Group Co LTD)
Right of First Offer. Subject to the terms and conditions specified in this Agreement, Spectrum hereby grants to SBC and Telmex, as long as SBC and Telmex own all of the shares of Series B Preferred Stock issued to them upon the closing under the Stock Purchase Agreements of even date herewith between SBC and NAS and between Telmex and NAS (the "Preferred Shares") or all of the shares of Common Stock issued upon conversion of such Preferred Shares (or a greater number of shares of Preferred Stock or shares of Common Stock than originally issued upon such closing or conversion), a right of first offer with respect to future sales by Spectrum of any shares of Common Stock or other securities of NAS (the "TRANSFER SHARES") owned of record or beneficially by Spectrum on or after the date hereof.
(a) Other than Prohibited TransfersIn the event Spectrum proposes to sell any TRANSFER SHARES, if at it shall give SBC, Telmex and any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Transferees (as defined in Section 3.5) written notice (the “RFO Offeror”"Notice") fully complies with of its intention stating: (i) a description of the TRANSFER SHARES it proposes to sell, (ii) the number of TRANSFER SHARES it proposes to sell, and (iii) the price per share at which, and other terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply on which, it proposes to Permitted Transferssell such TRANSFER SHARES.
(b) The RFO Offeror shallWithin 10 Business Days after the Notice is given, prior SBC, Telmex and the Transferees may elect to purchase, at the Transfer of any Ordinary Shares price specified in the Notice, up to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares shares of the TRANSFER SHARES proposed to be disposed of sold. An election to purchase (the “RFO Ordinary Shares”)"Election") shall be made in writing and must be given to Spectrum within such 10 Business Day period. Unless otherwise agreed by SBC, (ii) Telmex and the Transferees, if more than one of SBC, Telmex and any Transferee desires to purchase TRANSFER SHARES and there are insufficient TRANSFER SHARES to accommodate all proposed purchase price per RFO Ordinary Sharepurchases, the SBC, Telmex and payment Transferee purchases shall be on a pro rata basis based on the number of shares of NAS Preferred Stock and other material terms and conditions and (iii) an irrevocable offer NAS Common Stock they own at such time. The closing of the sale of TRANSFER SHARES by Spectrum to sell SBC and/or Telmex and/or any Transferee shall take place within 30 days after the Election is made, provided that the 30 day period shall be extended to the RFO Offeree(s) extent necessary to accommodate the RFO Ordinary Shares set forth in receipt of any necessary regulatory approvals for the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinsale.
(c) The RFO Offeree(s) collectively Spectrum shall have 90 days after the last date on which SBC's and Telmex's right of first offer lapsed to enter into an agreement (pursuant to which the sale of TRANSFER SHARES covered thereby shall be closed, if at all, within 45 days from the execution thereof) to sell the TRANSFER SHARES which SBC, Telmex and the Transferees did not elect to purchase (under this Agreement, at or above the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof price and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not materially more favorable to the purchasers thereof of such securities than the terms specified in the RFO initial Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority given in connection with such Transfers to be obtained or made, to sale. In the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror event Spectrum has not completed entered into an agreement to sell the Transfer of TRANSFER SHARES within such 90 day period (or sold and issued the RFO Ordinary Shares, TRANSFER SHARES in accordance with the RFO Offeror shall no longer be permitted to dispose foregoing within 45 days from the date of such RFO Ordinary Shares agreement), Spectrum shall not thereafter issue or sell any TRANSFER SHARES without again fully complying first offering such TRANSFER SHARES to SBC, Telmex and the Transferees in the manner provided in this Agreement.
(d) Notwithstanding any other provision hereof, Spectrum shall have the right to sell or otherwise transfer any TRANSFER SHARES without compliance with the any other provisions of this Section 3.3.
(f) The RFO Offeror shall, upon the Transfer 1 to any person or entity who is a general partner or limited partner of Spectrum as of the RFO Ordinary Shares, procure the resignation date hereof (each of such number of directors nominated persons or entities, a "Permitted Transferee") who or which agrees to be bound by it, if any, as would be required pursuant to Section 2.2 the provisions hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Right of First Offer Agreement (SBC Communications Inc)
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires Any Management Stockholder wishing to Transfer Equity Securities (other than pursuant to any Permitted Transfer, a Transfer in accordance with Section 3.01(b)) must inform the Investor of such Transfer shall be permitted only if such Shareholder intent in writing specifying the number of Equity Securities (the “RFO OfferorOffered Shares”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply it intends to Permitted TransfersTransfer.
(b) The RFO Offeror shallBy delivering such written notice of intent, prior the Management Stockholder represents and warrants to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth Investor that (i) the number Management Stockholder has (and will have on the closing date of Ordinary any purchase of such Offered Shares proposed by the Investor pursuant to be disposed of (this Section 3.02) full right, title and interest in and to the “RFO Ordinary Offered Shares”), (ii) the proposed Management Stockholder has (and will have on the closing date of any purchase price per RFO Ordinary Shareof such Offered Shares by the Investor pursuant to this Section 3.02) all the necessary power and authority and has taken all necessary action to sell such Offered Shares as contemplated by this Section 3.02, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Offered Shares set forth in the RFO Notice at the same price per Ordinary Share are (and will be on the same closing date of any purchase of such Offered Shares by the Investor pursuant to this Section 3.02) free and clear of any and all Liens other than those arising as a result of or under the terms of this Agreement and conditions other than Permitted Liens, which shall, as set forth therein.of the closing date of any purchase of such Offered Shares by the Investor pursuant to this Section 3.02 be released by the holder thereof. CPAM: 9910021.10
(c) The RFO Offeree(s) collectively Upon receipt of such written notice of intent, the Investor shall have the right to offer to purchase all (the “Right of First Offer”), any or all but not less than all) of the RFO Ordinary Offered Shares by delivering a written notice (the a “RFO ExerciseROFO Offer”) of exercise of the Right of First Offer to the RFO Offeror within 20 Management Stockholder stating that it offers to purchase such Offered Shares on the terms and conditions (twentyincluding price) specified therein. Any ROFO Offer so delivered on or before the date that is 15 Business Days from after receipt by the date Investor of delivery such written notice of the RFO Notice intent (the “RFO Response ROFO Notice Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered binding upon delivery and irrevocable by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedInvestor.
(d) If Upon receipt of any ROFO Offer, the RFO Offeree(s) Management Stockholder shall have delivered an RFO Exercise the right to accept the offer set forth therein by delivering a written acceptance (the “ROFO Acceptance”) of the ROFO Offer to the RFO Offeror within Investor on or before the RFO Response date that is 15 Business Days after receipt by the Management Stockholder of the ROFO Offer (the “ROFO Acceptance Period”). Any ROFO Acceptance so delivered on or before the expiration of the ROFO Acceptance Period for all shall constitute a binding agreement of the RFO Ordinary SharesManagement Stockholder to sell and the Investor to purchase, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Offered Shares within thirty (30) days thereafter upon on the terms and conditions set forth in the RFO Notice; provided, however, that ROFO Offer. Any such period sale shall be extended following such date as necessary to permit all required approvals, consents or authorizations fromconsummated on the 5th Business Day after receipt by the Investor of the ROFO Acceptance, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to as otherwise agreed between the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; Management Stockholder and provided further that no such extension shall exceed 60 daysInvestor.
(e) If the RFO Offeree(s) Investor does not deliver a ROFO Offer during the ROFO Notice Period it shall be deemed to have waived all of its rights to purchase the Offered Shares under this Section 3.02, and the Management Stockholder shall thereafter be free to market and Transfer on or before the date that is 60 Business Days after the expiration of such ROFO Notice Period the Offered Shares, subject to the provisions of Section 3.03, to any Person. If the Management Stockholder does not so Transfer the Offered Shares on or before the date that is 60 Business Days after the expiration of such ROFO Notice Period, the rights provided hereunder shall be deemed to be revived and the Offered Shares shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject be offered to any of person unless the restrictions set forth Management Stockholder again complies with this Section 3.02.
(f) If the Investor does deliver a ROFO Offer in accordance with this Article III; providedSection 3.02, however, that (i) such Transfer of and the RFO Ordinary Shares is consummated on terms Management Stockholder does not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent deliver a ROFO Acceptance prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by ROFO Acceptance Period, the RFO Offeror to obtain such approvalsManagement Stockholder may, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at during the end 60 Business Day period following the expiration of the Transfer ROFO Acceptance Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted subject to dispose of such RFO Ordinary Shares without again fully complying with the provisions of Section 3.03, market and Transfer all of the Offered Shares to any Person on terms and conditions no more favorable to such Person than those set forth in the ROFO Offer. If the Management Stockholder does not Transfer the Offered Shares within such period, the rights provided hereunder shall be deemed to be revived and the Offered Shares shall not be offered for Transfer to any Person unless the Management Stockholder again complies with this Section 3.33.02.
(fg) The RFO Offeror shallEach Management Stockholder participating in a sale contemplated by this Section 3.02 shall take all actions as may be reasonably necessary to consummate the sale contemplated by this Section 3.02 including, upon without limitation, entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate.
(h) At the Transfer closing of any sale and purchase pursuant to this Section 3.02, the Management Stockholder shall deliver to the Investor a certificate or certificates representing the Offered Shares to be sold (if any), accompanied by stock powers with signatures guaranteed and all necessary stock transfer taxes paid and stamps affixed, if necessary, against receipt of the RFO Ordinary Shares, procure purchase price therefor from the resignation Investor by certified or official bank check or by wire transfer of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationimmediately available funds.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited TransfersFollowing the Coty Holding Period, if at any time after the Lock Up Period a Shareholder desires Coty (“ROFO Transferor”) proposes to Transfer any Securities (other than to a Permitted Transferee pursuant to Clause 5.3(a)(i), or pursuant to Clauses 5.6, Clause 5.7, Clause 5.8 or Article VI), it shall, prior to making any Permitted Transferoffer to, or requesting or accepting any offer from, any bona fide third party in respect of such Securities, provide prior written notice (a “Transfer Notice”, which Transfer Notice shall be permitted only if irrevocable once given) of such Shareholder intention to Topco and Rainbow Capital (the “RFO OfferorROFO Holder”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers).
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth Notice shall include (i) the number of Ordinary Shares Securities proposed to be disposed of Transferred by the ROFO Transferor (the “RFO Ordinary SharesROFO Securities”), and (ii) a statement notifying the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable ROFO Holder of its right to make a first offer to sell purchase such Securities pursuant to this Clause 5.5 (the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein“ROFO”).
(c) The RFO Offeree(s) collectively Within 90 days after the date of delivery of the Transfer Notice (the “ROFO Deadline”), the ROFO Holder shall have the right (but not the obligation) to make an offer (a “ROFO Offer”) to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares ROFO Securities by delivering giving a written notice (the “RFO ExerciseOffer Notice”) of exercise of the Right of First Offer to the RFO Offeror within 20 ROFO Transferor, which Offer Notice shall set forth: (twentyi) Business Days from the date cash amount of delivery of consideration per ROFO Security or the RFO Notice formula by which such cash consideration is determined at which such purchase is proposed to be made (the “RFO Response PeriodOffer Price”), irrevocably stating therein such portion ; (ii) a confirmation to the ROFO Transferor that it has secured financing on a customary European certain funds basis; and (iii) all other material terms and conditions of the RFO Ordinary Shares as ROFO Offer. If the ROFO Holder has not furnished an Offer Notice that complies with the above requirements, including the applicable time periods, it shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedwaived all its rights to purchase such ROFO Securities under such ROFO Offer. The tender by the ROFO Holder of an Offer Notice shall constitute an irrevocable ROFO Offer by the ROFO Holder to purchase from the ROFO Transferor, for cash, the ROFO Securities at the Offer Price.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to offeree under the RFO Offeror within Offer Notice constitutes a group of Affiliates of the RFO Response Period for all the RFO Ordinary SharesROFO Holder, the RFO Offeror and RFO Offeree(s) allocation of the ROFO Securities among them shall be respectively boundon a pro rata basis among them or such other allocation as such group may determine, and the ROFO Holder shall complete notify the sale and purchase ROFO Transferor of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth allocation among each Person in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysgroup.
(e) If the RFO Offeree(s) shall not have completed the purchase of ROFO Transferor receives an Offer Notice containing a ROFO Offer as to all of the RFO Ordinary Shares ROFO Securities on or before the ROFO Deadline (which Offer Notice shall be irrevocable once given), the ROFO Transferor shall inform the ROFO Holder by written notice (“Acceptance Notice”) whether or not it accepts the ROFO Offer within ten (10) Business Days of receipt of the RFO Purchase PeriodOffer Notice.
(f) If the ROFO Transferor accepts the ROFO Offer, within a further 30 days after the delivery of an Acceptance Notice (and as extended by such period as provided is reasonably necessary to obtain any mandatory regulatory, competition or other suspensory clearances):
(i) the ROFO Holder shall purchase and pay the Offer Price in Section 3.3(d), or together have failed cash in immediately available funds for the ROFO Securities; and
(ii) subject to deliver RFO Exercises within the RFO Response Period for all receipt of the RFO Ordinary Shares as contemplated relevant consideration, the ROFO Transferor shall Transfer the ROFO Securities to the ROFO Holder.
(g) Where the ROFO Holder waives or is deemed to waive its ROFO in Section 3.3(d) accordance with the provisions of this Clause 5.5 or declined where the ROFO Transferor rejects or does not deliver an Acceptance Notice in writing to exercise respect of any ROFO Offer delivered by the Right of First OfferROFO Holder, then the RFO Offeror ROFO Transferor shall have the right for sixty a period of 180 days (60) days thereafter (commencing on the “Transfer Period”date of such waiver or deemed waiver, the date of such rejection or the last date for delivery of an Acceptance Notice, whichever is earlier, and as extended by such period as is reasonably necessary to obtain any mandatory regulatory, competition or other suspensory clearances, so long as the successful bidder acts in a commercially reasonable manner to obtain such regulatory clearances), to dispose Transfer the ROFO Securities to any bona fide third party at a price, in cash, which is not less than 105% of the RFO Ordinary Shares in one or Offer Price and otherwise on such terms and conditions (including as to price and timing of receipt of consideration) no more Transfers thereof without being subject favourable to any of the restrictions that third party, taken as a whole, than those set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms Offer Notice. If the ROFO Securities are not more favorable Transferred pursuant to the purchasers thereof than the terms specified in the RFO Notice and (iiprovisions of this Clause 5.5(g) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken prescribed time period, such ROFO Securities shall become subject once again to the provisions and restrictions of this Agreement.
(h) The receipt of consideration by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at ROFO Transferor selling the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed ROFO Securities in payment for the Transfer of such ROFO Securities pursuant to an accepted ROFO Offer shall be deemed a warranty by such ROFO Transferor that: (i) such ROFO Transferor has full right, title and interest in and to such ROFO Securities; (ii) such ROFO Transferor has all necessary power and authority and has taken all necessary actions to sell such ROFO Securities as contemplated by the RFO Ordinary SharesROFO Offer; and (iii) such ROFO Securities are free and clear of any and all liens or Encumbrances at the time of transfer. In furtherance of the above, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.
(f) The RFO Offeror ROFO Transferor shall, upon the Transfer reasonable request of the RFO Ordinary Shares, procure ROFO Holder give any other additional customary title and capacity warranties in respect to the resignation of such number of directors nominated ROFO Securities held by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Shareholders' Agreement (Coty Inc.)
Right of First Offer. (ai) Other than Prohibited TransfersSubject to subsection (vii) below, if at any time after the Lock Up Period a Shareholder desires Common Holder desiring to Transfer other than pursuant transfer, prior to any Permitted TransferSeparation Event, such Transfer shall be permitted only if such Shareholder Investment Units or Common Stock, whether held separately or as part of one or more Investment Units and after a Separation Event any Common Stock (the “RFO Offeror”) fully complies with the terms hereinafter for purposes of this Section 3.3only, the "Securities"), held by such Common Holder (the "Seller") shall give written notice (the "Sales Notice") to the other Common Holders that the Seller desires to effect such a transfer (a "Sale") and setting forth the number of Investment Units or shares of Common Stock proposed to be transferred by the Seller.
(ii) The receipt of the Sales Notice by each other Common Holder party to this Shareholders Agreement shall constitute an offer (the "Offer") by the Seller to sell to such Common Holder or group of Common Holders for cash the Securities subject to the Sale, subject to the Seller's approval of the terms and conditions of the Bid (as defined below). Each Common Holder, or any group of one or more Common Holders, receiving an Offer shall have a 15-day period (the "Order Period") in which to give a written notice (a "Bid") to the Seller prior to the expiration of such 15-day period, which written notice shall set the price per Security that such Common Holder or group of Common Holders proposes to pay (the "Proposed Sales Price") and such other terms and conditions it or they propose with respect to the Sale; provided that provided, however, a Bid must be for all of the Securities the Seller proposes to transfer as stated in the Sales Notice.
(iii) Upon the receipt of all Bids, if any, the Seller shall have the right to solicit offers for the Securities subject to the Sale from any non-affiliated third-party (a "Third-Party Offer") for a period of 90 days from the date the Order Period expires. To the extent the Seller receives a Third-Party Offer and such Third-Party Offer contains a Proposed Sales Price in excess of the highest Sales Price received by Seller pursuant to the Bids made by the Common Holders or group of Common Holders, then Seller shall have the right to sell the Securities to the Third-Party pursuant to its Offer. If no Bids are delivered during the Order Period then the Seller shall be entitled to accept, in its sole discretion, any Third-Party Offer it so chooses. If such sale pursuant to a Third-Party Offer is not consummated within 120-days from receipt of the Third-Party Offer, and no Bids of Common Holders are accepted by the Seller within 10 days following the expiration of the 90-day period described in the first sentence of this subparagraph (iii), then the provisions of this Section 3.3 1(b) shall not apply be reinstated as to Permitted Transfersany other transfers proposed to be made by the Seller.
(biv) The RFO Offeror shall, prior Common Holders or group of Common Holders providing a Bid to the Transfer Seller during the Order Period as to all of any Ordinary Shares the Securities subject to the Sale, and which this Section 3.3 appliesBid is accepted by the Seller, give shall be required to purchase and pay for all the Securities accepted pursuant to their Bid within a 30-day period from the date on which the buying Common Holder (or group of Common Holders) receives written notice (“RFO Notice”) of the Seller's acceptance of the Bid; provided that if the purchase and sale of such Securities is subject to each other Shareholder (eachany prior regulatory approval, an “RFO Offeree”), setting forth (i) the number time period during which such purchase and sale may be consummated shall be extended until the expiration of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinfive Business Days after all such approvals shall have been received.
(cv) The RFO Offeree(s) collectively shall have Subject to the right to purchase (the “Right transfer restrictions of First Offer”Section 1(a)(ii), any the Seller may transfer Investment Units or all shares in accordance with subsection (b)(iii) for consideration other than cash to an unaffiliated third-party only if the Seller has first obtained and delivered to each of the RFO Ordinary Shares by delivering a written notice (Common Holders an opinion of an independent investment banking firm of national standing indicating that the “RFO Exercise”) of exercise fair market value of the Right of First Offer per share non-cash consideration that the Seller proposes to accept as consideration for such Investment Units or shares, together with any per share cash consideration, is at least equal to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, highest proposed Sale Price received by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof Seller pursuant to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered Bids made by the RFO Offeror to the other RFO Offeree(s) (Common Holders or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number group of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedCommon Holders.
(dvi) If Notwithstanding any provision of this Section 1(b), no action may be taken by the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary SharesSeller, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete other Common Holders or the sale and purchase Company that would cause a violation of the RFO Ordinary Shares within thirty provisions of Section 2.
(30vii) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period The Company shall be extended following such date as take all reasonable steps necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority ensure application is made for the appropriate permissions from the Bermuda authorities in connection with such purchase to be obtained or made, to the extent any Transfer complying with this Agreement. The Company hereby acknowledges that no prior to the expiration approval of the RFO Purchase Period reasonably appropriate actions have been taken by Bermuda Monetary Authority is necessary for any Transfer between Persons who are designated as non-residents of Bermuda for the RFO Offeree(s) to obtain such approvalspurposes of the Exchange Control Act, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days1972.
(eviii) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the The provisions of this Section 3.3.1(b) shall not apply to:
(fA) The RFO Offeror shall, upon the a Transfer of shares of Common Stock to an Affiliate of the RFO Ordinary Shares, procure the resignation Seller;
(B) a Transfer of such number shares of directors nominated Common Stock to another Common Holder;
(C) a Transfer of Investment Units to a Common Holder holding Investment Units;
(D) a Transfer by itone or more Common Holders of a majority of all shares of Common Stock (and, if anyprior to a Separation Event, as would be Investment Units) then outstanding to any Person or Persons;
(E) a Transfer required by the provisions of Section 1(c) or Section 2;
(F) a Transfer permitted by the provisions of Section 1(d);
(G) a Transfer pursuant to Section 2.2 hereofan effective registration statement with respect to the Common Stock to be transferred;
(H) a Transfer on or after the fifth anniversary of the date of this Agreement; or
(I) a Transfer made by ▇▇▇▇▇▇▇ ▇. Price to one or more employees (listed on Schedule II hereto on the date hereof as such schedule may be amended or supplemented from time to time) of the Company and its affiliates no later than January 30, and such director shall execute a letter of resignation1999.
Appears in 1 contract
Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior 3.01. Subject to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively below, Tenant shall have the right to purchase (the a one-time “Right of First Offer” to lease the entire 32,291 rentable square feet of the first (1st) floor of the section of the Building known as “building 4” (as more particularly shown on Exhibit C attached hereto, the “Building 4 ROFO Space”) for a term which shall be coterminous with the Term for the Original Premises then in effect at the Fair Market Rent (as defined in Section 3.04 below), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of with respect to Building 4 ROFO Space A (defined below), the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof rent shall be no less than the terms specified fully escalated rent paid by Tenant in the RFO Original Premises at the time of Tenant’s Acceptance Notice (defined below) and (ii) the RFO Offeror provides written confirmation with respect to the RFO Offeree(sentire Building 4 ROFO Space, Tenant shall have an improvement allowance in an amount not to exceed $484,365 ($15.00 per rsf) which may be applied to Tenant’s hard costs and design costs for Tenant’s initial fit-up of the Building 4 ROFO Space subject to the terms of Exhibit B hereof (the “ROFO Space Allowance”). Up to $96,873 ($3.00 per rsf) of the ROFO Space Allowance may be applied to telecommunications and data cabling. As used herein, “Building 4 ROFO Space A” shall mean that portion of the Building 4 ROFO Space that is the Expansion Premises (10,751 rsf), and “Building 4 ROFO Space B” shall mean the remaining portion of the Building 4 ROFO Space (21,540 rsf) which is currently subject to the Imprivata Lease (defined below). Any such terms comply with clause Right of First Offer shall provide that Base Rent for Building 4 ROFO Space shall commence forty-five (i45) hereof days after delivery of possession of the Building 4 ROFO Space B to the Tenant; subject to the requirement that Tenant has submitted to the Landlord prior to the consummation delivery of such sale; and provided further, that possession of the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers Building 4 ROFO Space plans for approval by Landlord of work to be obtained or made, performed by Tenant as contemplated by the terms of Exhibit B (the intent being that such delayed Base Rent commencement is to provide an opportunity to perform Tenant Improvements to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Building 4 ROFO Space).
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Sources: Office Lease Agreement (Gomez Inc)
Right of First Offer. (a) Other than Prohibited TransfersSubject to Section 4.1, if at a Party or any time after the Lock Up Period of its Affiliates (each such Person, a Shareholder “Transferor”) desires to Transfer to a Third Party (either directly or indirectly through a Change in Control but excluding Transfers of the types described in Section 4.1(c) and a Transfer of an Immaterial Interest) all or any portion of the Transferor's Joint Development Interest, the Transferor shall give to the other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Parties (the “RFO OfferorROFO Parties”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO ROFO Notice”) stating the Transferor's desire to each other Shareholder (eacheffect such Transfer, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed Joint Development Interest to be disposed of Transferred (the “RFO Ordinary SharesOffered Interest”), (ii) and the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer on which the Transferor proposes to sell to Transfer the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO NoticeOffered Interest; provided, however, that if the consideration set forth in such period ROFO Notice contemplates any non-cash consideration, the ROFO Parties shall be extended following entitled to pay in lieu of such date as necessary to permit all required approvalsnon-cash consideration, consents or authorizations from, or filings or registrations with, any Governmental Authority cash in connection with such purchase to be obtained or made, an amount equal to the extent prior Fair Market Value of such non-cash consideration unless the ROFO Parties and Transferor agree to the expiration some other form of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror consideration. The ROFO Parties shall have the right for sixty (60) days thereafter but not the obligation to elect to acquire such Offered Interest on the terms and conditions set forth in the ROFO Notice. The ROFO Notice shall constitute a binding offer (the “ROFO Offer”) by the Transferor to Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than ROFO Parties the Offered Interest at the price and upon the terms specified in the RFO ROFO Notice and (ii) such offer shall be irrevocable for 30 days following receipt by the RFO Offeror provides ROFO Parties. Any ROFO Party may accept such ROFO Offer and acquire all but not less than all of the Offered Interest by giving written confirmation notice of the same to the RFO Offeree(sTransferor within such 30-day period; provided that if more than one ROFO Party accepts such ROFO Offer then, unless such ROFO Parties otherwise agree, each ROFO Party shall acquire a pro rata portion of the Offered Interest based on the relative Participating Interests of each accepting ROFO Party. The failure by any ROFO Party to so notify the Transferor within such 30-day period shall be deemed an election by such ROFO Party not to accept such ROFO Offer.
(b) that If one or more ROFO Parties accepts the ROFO Offer, then the Transferor and such terms comply with clause (i) hereof prior accepting ROFO Parties shall cooperate together to consummate the Transfer of the Offered Interest to the consummation of such sale; and provided further, that the Transfer Period shall be extended ROFO Parties as promptly as practicable following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration acceptance.
(c) If none of the ROFO Parties accepts the ROFO Offer, then the Transferor may Transfer Period reasonably appropriate actions have been taken by all but not less than all of the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If Offered Interest at any time within 180 days following the end of the 30-day period that the ROFO Parties had to accept the ROFO Offer. Any such Transfer Periodshall be at a price not less than the price set forth in the ROFO Notice and on such other terms and conditions not more favorable in any material respect to the acquiring party than those specified in the ROFO Notice. If the Transferor does not affect such Transfer within such 180-day period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, Offered Interest shall again become subject to the RFO Offeror shall no longer be permitted to dispose right of such RFO Ordinary Shares without again fully complying with the provisions of first offer set forth in this Section 3.34.4.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
Appears in 1 contract
Right of First Offer. Simultaneously with any offer to lease any portion of the Building or any portion of the building located at ▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (the “701 Building,” and collectively with the Building, the “ROFO Space”), to any third party, Landlord shall offer to lease such space to Tenant at the Second Amendment Expansion Market Rent (defined below), except as provided below, provided however, that (a) Other if there are less than Prohibited Transfersthree (3) Lease Years left in the Term at the time Landlord is offering to lease any such ROFO Space, unless Tenant leases five thousand (5,000) square feet or less of such ROFO Space, Tenant may lease such ROFO Space only if Tenant has irrevocably exercised the Extension Option set forth in Section 2.4.1 of the Lease (as amended by Section 5 hereof) for the Premises so that such ROFO Space shall be leased by Tenant for more than a three (3) year term, (b) such ROFO Space shall be leased by Tenant in its “as is” condition with such tenant improvement allowances, free rent, or other concessions as are then being offered generally for comparable space in comparable properties in the “greater Metro-North” area, (c) the figures for Base Operating Expenses and Base Taxes applicable to such ROFO Space shall be the actual amounts (adjusted to 95% occupancy) for the calendar year and fiscal year, respectively, in which such ROFO Space is to be delivered to Tenant, and (d) Tenant may elect to lease either a portion of, or at Tenant’s option, the entire ROFO Space to the extent that the same is not then under lease to other tenants or the subject of active lease negotiations following an offer to Tenant under this Section 6(a) (the “ROFO Option”). Any tenant or occupant of the ROFO Space from time to time, any affiliate thereof, or any party having a right (including right of first offer) as of the date hereof to lease such space, including without limitation, ▇▇▇▇▇▇▇ & ▇▇▇▇, to the extent of its rights to lease a portion of such space as of the date hereof, shall not be considered a “third-party” for purposes of this Section 6(a), and Landlord shall be free to lease any portion of the ROFO Space to any of the foregoing without offering the same to Tenant. Notwithstanding the foregoing, if Landlord’s offer to Tenant hereunder occurs at any time from and after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transferfirst day of the Extension Commencement Date through the last day of the twenty-fourth (24th) month following the Extension Commencement Date, such Transfer Landlord shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell lease such space to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and Tenant on the same terms and conditions as set forth therein.
(ccontained in the Lease on a pro rata basis. Any offer by Landlord under this Section 6(a) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares may be accepted by delivering a Tenant by written notice given within twenty (the “RFO Exercise”20) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date days of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s))Landlord’s offer. Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree If Tenant does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may timely accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-Landlord’s offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(sthen Tenant’s rights under this Section 6(a) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection deemed conclusively waived by Tenant with such purchase to be obtained or made, respect to the extent prior to the expiration next lease of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvalsROFO Space, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) the next such Transfer lease’ of the RFO Ordinary Shares such ROFO Space is consummated on terms not more favorable entered into within six (6) months after Tenant’s failure to the purchasers thereof than the terms specified in the RFO Notice accept Landlord’s offer and (ii) the RFO Offeror provides written confirmation difference between the net present value of the economic terms of the next such lease and the net present value of the economic terms of the Landlord’s offer is less than ten percent (10%) of the net present value of the economic terms of Landlord’s offer. Landlord shall have no further obligation to offer such ROFO Space to Tenant before next leasing the same to a third party occurring within such six (6) month period and on such economic terms, but this Section 6(a) shall apply to any other lease of ROFO Space. In the event that Tenant accepts any offer by Landlord under this section, the leasing of such Second Amendment Offered Space and the rent therefor shall be documented by an amendment to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Lease. Tenant’s rights under this Section 6 shall be extended following such date rendered void, at Landlord’s election, if Tenant is in default beyond any applicable notice or grace period at the time Landlord offers any space to a third party or at the time Tenant’s lease of any Second Amendment Offered Space under this Section 6 would otherwise commence. For purposes of this paragraph, net present value shall be calculated using an eight percent (8%) discount rate. If Tenant exercises its rights under this Section 6(a), Landlord shall use reasonable efforts to deliver the ROFO Space as necessary set forth in Landlord’s offer. Landlord’s failure to permit all required approvals, consents or authorizations fromdeliver, or filings delay in delivering, all or registrations withany part of the ROFO Space by reason of Force Majeure, as such term is defined in Section 4.2 of the Lease, and including continued occupancy of any Governmental Authority such ROFO Space by any occupant thereof shall not give rise to any liability of Landlord, shall not alter Tenant’s obligation to accept such ROFO Space when delivered, shall not constitute a default of Landlord, and shall not affect the validity of the Lease, as amended hereby; provided that if delivery of the ROFO Space does not occur within ninety (90) days after the delivery date set forth in connection with such Transfers Landlord’s Offer, Tenant may elect to be obtained or made, to the extent prior to withdraw its exercise of its rights under this Section 6(a) by notice given within five (5) Business Days after the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty ninety (3090) daysday period. If at Tenant so notifies Landlord, Tenant’s Right of First Offer under this Section 6(a) shall not apply to the end next lease of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror ROFO Space in question (but shall no longer be permitted apply to dispose of such RFO Ordinary Shares without again fully complying with the provisions subsequent leases thereafter). The terms of this Section 3.3.
(f6(a) The RFO Offeror shall, upon are intended to supersede the Transfer terms of Section 5 of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereofFirst Amendment, and such director shall execute a letter Section 5 of resignationthe First Amendment is hereby deleted in its entirety.
Appears in 1 contract
Sources: Lease (Alliance Data Systems Corp)
Right of First Offer. (a) Other than Prohibited TransfersSubject to Section 4.1, if at a Party or any time after the Lock Up Period of its Affiliates (each such Person, a Shareholder “Transferor”) desires to Transfer to a Third Party (either directly or indirectly through a Change in Control but excluding Transfers of the types described in Section 4.1(c) and a Transfer of an Immaterial Interest) all or any portion of the Transferor’s Joint Development Interest, the Transferor shall give to the other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder Parties (the “RFO OfferorROFO Parties”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.
(b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO ROFO Notice”) stating the Transferor’s desire to each other Shareholder (eacheffect such Transfer, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed Joint Development Interest to be disposed of Transferred (the “RFO Ordinary SharesOffered Interest”), (ii) and the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer on which the Transferor proposes to sell to Transfer the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.
(c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.
(d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO NoticeOffered Interest; provided, however, that if the consideration set forth in such period ROFO Notice contemplates any non-cash consideration, the ROFO Parties shall be extended following entitled to pay in lieu of such date as necessary to permit all required approvalsnon-cash consideration, consents or authorizations from, or filings or registrations with, any Governmental Authority cash in connection with such purchase to be obtained or made, an amount equal to the extent prior Fair Market Value of such non-cash consideration unless the ROFO Parties and Transferor agree to the expiration some other form of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.
(e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror consideration. The ROFO Parties shall have the right for sixty (60) days thereafter but not the obligation to elect to acquire such Offered Interest on the terms and conditions set forth in the ROFO Notice. The ROFO Notice shall constitute a binding offer (the “ROFO Offer”) by the Transferor to Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than ROFO Parties the Offered Interest at the price and upon the terms specified in the RFO ROFO Notice and (ii) such offer shall be irrevocable for 30 days following receipt by the RFO Offeror provides ROFO Parties. Any ROFO Party may accept such ROFO Offer and acquire all but not less than all of the Offered Interest by giving written confirmation notice of the same to the RFO Offeree(s) Transferor within such 30-day period; provided that if more than one ROFO Party accepts such terms comply with clause (i) hereof prior ROFO Offer then, unless such ROFO Parties otherwise agree, each ROFO Party shall acquire a pro rata portion of the Offered Interest based on the relative Participating Interests of each accepting ROFO Party. The failure by any ROFO Party to so notify the consummation of Transferor within such sale; and provided further, that the Transfer Period 30-day period shall be extended following deemed an election by such date as necessary ROFO Party not to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with accept such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3ROFO Offer.
(f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.
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