Right of Last Refusal. The following provisions apply in respect of any sale referred to in clause 12.4: (a) the Selling Participant must give notice of the proposed sale to each of the other Participants, and must include in the notice (Proposed Sale Notice): (i) the name and address of the person to whom the Selling Participant’s Joint Venture Interest is proposed to be sold (Proposed Buyer); (ii) the portion of the Selling Participant’s Joint Venture Interest which is the subject of the proposed sale (Sale Interest); (iii) the cash consideration or cash equivalent of the non-cash consideration for which the Selling Participant’s Joint Venture Interest is proposed to be sold; and (iv) all the other terms and conditions of the proposed sale; (b) the Selling Participant must include with the Proposed Sale Notice an offer to sell the Sale Interest to such of the other Participants who are not then in default in the payment of any Called Sums, and with respect to which an Event of Default is not ▇▇▇▇▇▇▇ + ▇▇▇▇▇ page | 50 then in existence (Continuing Participants), in proportion to their respective Joint Venture Interests, at the same price (being in the case of non-cash consideration, unless the Continuing Participants agree otherwise in relation to a royalty, the cash equivalent determined under this clause 12.5) and, subject to clause 12.6, on the same terms and conditions on which it is willing to sell the Sale Interest to the Proposed Buyer. The offer must be in a form which is capable of immediate acceptance by the Continuing Participants; (c) if the consideration notified by the Selling Participant to the Continuing Participants under the Proposed Sale Notice is non-cash consideration, the Selling Participant must bona fide convert the non-cash consideration to a cash equivalent on a basis that is transparent and disclosed in the Proposed Sale Notice; (d) if any Continuing Participant does not agree with the basis on which the non-cash consideration has been converted to a cash equivalent, that party must so notify the Selling Participant and the other Continuing Participants within seven (7) days of it receiving the Proposed Sale Notice; (e) on a Continuing Participant so notifying the Selling Participant, all of the Participants will promptly meet and endeavour to reach agreement on the amount of the cash equivalent of the non-cash consideration. If agreement is reached, the Selling Participant must issue a new Proposed Sale Notice including the agreed cash equivalent. The period of 60 days referred to in clause 12.5(h) will be deemed to commence on the date that the Selling Participant issues a fresh Proposed Sale Notice and the original notification to the Continuing Participants will be deemed never to have been made. If within 14 days after their first meeting, the Selling Participant and the Continuing Participants have not reached agreement on the amount of the cash equivalent of the non-cash consideration, the matter will be referred to an Expert in accordance with clause 17 to determine whether or not the Selling Participant’s calculation of the cash equivalent was fair and reasonable and, if not, to determine the Expert’s calculation of the amount of the cash equivalent; (f) if the Expert determines that the Selling Participant’s calculation of the cash equivalent was fair and reasonable: (i) the period of 60 days referred to in clause 12.5(h) will be deemed to have commenced on the date the Proposed Sale Notice was given provided that if the period of 60 days has expired or would expire prior to 14 days after the date upon which the Expert notifies the Participants of his determination, the 60 day period will be extended to the date which is 14 days after the date upon which the Expert notifies the Participants of the Expert’s determination; and (ii) the Expert’s costs will be borne by the Continuing Participant who objected to the Selling Participant’s calculation of the cash equivalent; (g) if the Expert determines that the Selling Participant’s calculation of the cash equivalent was not fair and reasonable: (i) the Selling Participant must issue a fresh Proposed Sale Notice to the Continuing Participants in accordance with the requirements of clause 12.5(a) including the cash equivalent as determined by the Expert and the original Proposed Sale Notice will be deemed never to have been made; and (ii) the Expert’s costs will be borne by the Selling Participant; (h) the Continuing Participants will have the right to accept the offer set out in the Proposed Sale Notice at any time within a period of 60 days from the date the Proposed Sale Notice is given (subject to any extension under clause 12.5(f)), and such offer must remain open for that period; (i) if one or more (but not all) of the Continuing Participants accept the offer within such 60 day period, the Selling Participant must notify the accepting Continuing Participant or Continuing Participants of details of the unaccepted portion of the Sale Interest and such Continuing Participant or Continuing Participants will have the right within a period of 60 days after the Selling Participant’s notice is given to accept the unaccepted part of the Sale Interest in proportion to their respective Joint Venture Interests (or as they may otherwise agree) at the same price and on the same terms and conditions; (j) if: (i) the whole of the Sale Interest is not accepted by one or more of the Continuing Participants; or (ii) the whole of the Sale Interest is accepted by one or more of the Continuing Participants but the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants is terminated before completion for reasons other than for a default on the part of the Selling Participant, then the Selling Participant may complete the sale of the Sale Interest to the Proposed Buyer in accordance with the terms and conditions of the proposed sale as set out in the Proposed Sale Notice (or on other terms no more favourable to the Proposed Buyer than those terms and conditions), within a period of 60 days (which period shall be extended until the 5th day following receipt of all Transfer Approvals (which must be sought with all reasonable dispatch), to the extent not obtained during the initial 60 day period, provided that the initial period can only be extended up to a maximum of 12 months) after: (iii) in the circumstances outlined in clause 12.5(j)(i), the end of either the 60 day period referred to in clause 12.5(h) or the 60 day period referred to in clause 12.5(i) as the case may be; and (iv) in the circumstances outlined in clause 12.5(j)(ii), the date of termination of the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants; (k) if the whole of the Sale Interest is accepted by one or more of the Continuing Participants, then the Selling Participant will transfer the Sale Interest to those Continuing Participants in accordance with the terms and conditions of the resulting contracts with those Continuing Participants. For the avoidance of doubt, the transfer of the Sale Interest to those Continuing Participants is not subject to any further rights of last refusal under this clause 12.5; and (l) for the avoidance of doubt, an offer made under clause 12.5(b) must relate only to the Sale Interest and must not include or relate to any other assets.
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Right of Last Refusal. The following provisions apply in respect of any sale referred to in clause 12.4:
(a) Subject to Sections 2 and 3.1, if at any time following the Selling Participant must give notice fifth (5th) anniversary of the proposed sale Closing Date a Transferor Shareholder receives a bona fide offer (a “Bona Fide Offer”) from a Third Party Purchaser to each purchase Shares (whether or not the procedure set forth in Section 3.1 has been followed), then, notwithstanding any agreement such Transferor Shareholder may have negotiated with such Third Party Purchaser, such Shareholder shall not irrevocably accept such Bona Fide Offer or consummate a transfer of Shares pursuant thereto without first making an irrevocable offer to the other Participants, and must include in the notice (Proposed Sale Notice):
(i) the name and address of the person to whom the Selling Participant’s Joint Venture Interest is proposed to be sold (Proposed Buyer);
(ii) the portion of the Selling Participant’s Joint Venture Interest which is the subject of the proposed sale (Sale Interest);
(iii) the cash consideration or cash equivalent of the non-cash consideration for which the Selling Participant’s Joint Venture Interest is proposed to be sold; and
(iv) all the other terms and conditions of the proposed sale;
(b) the Selling Participant must include with the Proposed Sale Notice an offer to sell the Sale Interest to such of the other Participants who are not then in default in the payment of any Called Sums, and with respect to which an Event of Default is not ▇▇▇▇▇▇▇ + ▇▇▇▇▇ page | 50 then in existence (Continuing Participants), in proportion to their respective Joint Venture Interests, at the same price (being in the case of non-cash consideration, unless the Continuing Participants agree otherwise in relation to a royalty, the cash equivalent determined under this clause 12.5) and, subject to clause 12.6, Shareholder on the same terms as those set forth in the Bona Fide Offer and conditions on which it is willing to sell the Sale Interest Transferor Shareholder shall provide written notice (a “Transfer Notice”) to the Proposed Buyer. The offer must be in a form other Shareholder, which is capable of immediate acceptance by the Continuing Participants;
(c) if the consideration notified by the Selling Participant to the Continuing Participants under the Proposed Sale Notice is non-cash consideration, the Selling Participant must bona fide convert the non-cash consideration to a cash equivalent on a basis that is transparent and disclosed in the Proposed Sale Notice;
(d) if any Continuing Participant does not agree with the basis on which the non-cash consideration has been converted to a cash equivalent, that party must so notify the Selling Participant and the other Continuing Participants within seven (7) days of it receiving the Proposed Sale Notice;
(e) on a Continuing Participant so notifying the Selling Participant, all of the Participants will promptly meet and endeavour to reach agreement on the amount of the cash equivalent of the non-cash consideration. If agreement is reached, the Selling Participant must issue a new Proposed Sale Notice including the agreed cash equivalent. The period of 60 days referred to in clause 12.5(h) will be deemed to commence on the date that the Selling Participant issues a fresh Proposed Sale Notice and the original notification to the Continuing Participants will be deemed never to have been made. If within 14 days after their first meeting, the Selling Participant and the Continuing Participants have not reached agreement on the amount of the cash equivalent of the non-cash consideration, the matter will be referred to an Expert in accordance with clause 17 to determine whether or not the Selling Participant’s calculation of the cash equivalent was fair and reasonable and, if not, to determine the Expert’s calculation of the amount of the cash equivalent;
(f) if the Expert determines that the Selling Participant’s calculation of the cash equivalent was fair and reasonableshall state:
(i) the period number of 60 days referred to in clause 12.5(h) will be deemed to have commenced on the date the Proposed Sale Notice was given provided that if the period of 60 days has expired or would expire prior to 14 days after the date upon which the Expert notifies the Participants of his determination, the 60 day period will be extended to the date which is 14 days after the date upon which the Expert notifies the Participants of the Expert’s determination; andOffered Shares,
(ii) the Expert’s costs will proposed purchase price per Share for the Offered Shares (the “Offer Price”),
(iii) the material terms and conditions of such proposed Bona Fide Offer (which may not include any term or condition that could not reasonably be borne agreed to or satisfied by the Continuing Participant who objected to other Shareholder),
(iv) the Selling Participant’s calculation identity of the cash equivalent;
Third Party Purchaser (g) including, if reasonably applicable, the Expert determines that the Selling Participant’s calculation identity of the cash equivalent was not fair and reasonable:
(i) Persons controlling the Selling Participant must issue a fresh Proposed Sale Notice to the Continuing Participants in accordance with the requirements of clause 12.5(a) including the cash equivalent as determined by the Expert and the original Proposed Sale Notice will be deemed never to have been made; Third Party Purchaser), and
(iiv) that the Expert’s costs will be borne by Third Party Purchaser has been informed of the Selling Participant;right of last refusal provided for in this Section 3.2, and that any sale to such Third Party Purchaser is conditioned upon the other Shareholder not exercising its rights under this Section 3.2.
(hb) For a period of 30 days after receiving the Continuing Participants will Transfer Notice, the other Shareholder shall have the right (but no obligation) to accept purchase all (but not less than all) of the offer Offered Shares at a purchase price per Share equal to the Offer Price and upon the other terms and conditions set forth in the Transfer Notice. Such right may be exercised by the other Shareholder’s delivery of written notice to the Transferor Shareholder prior to the expiration of such 30-day period. The failure of the other Shareholder to respond within such 30-day period shall be deemed to be a waiver of its right to purchase the Offered Shares.
(c) Unless the other Shareholder elects to purchase the Offered Shares pursuant to this Section 3.2, the Transferor Shareholder may, subject to Section 2.1(c), sell the Offered Shares to the Third Party Purchaser at not less than the Offer Price and on the other terms and conditions set forth in the Transfer Notice; provided that such sale is bona fide and made pursuant to a Contract entered into within 60 days after the rights of last refusal set out in the Proposed Sale Notice at any time foregoing provisions of this Section 3.2 have been exhausted. If such Contract is not signed within a period of 60 days from or the date the Proposed Sale Notice sale is given (subject to any extension under clause 12.5(f)), and such offer must remain open for that period;
(i) if one or more (but not all) of the Continuing Participants accept the offer consummated within such 60 day period, the Selling Participant must notify the accepting Continuing Participant or Continuing Participants of details of the unaccepted portion of the Sale Interest and such Continuing Participant or Continuing Participants will have the right within a period of 60 90 days after the Selling Participant’s notice is given to accept the unaccepted part signing of the Sale Interest in proportion to their respective Joint Venture Interests Contract (or as they may otherwise agree) at the same price and on the same terms and conditions;
(j) if:
(i) the whole of the Sale Interest is not accepted by one or more of the Continuing Participants; or
(ii) the whole of the Sale Interest is accepted by one or more of the Continuing Participants but the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants is terminated before completion for reasons other than for a default on the part of the Selling Participantwithin 30 days after all Approvals are obtained, if later), then the Selling Participant restrictions provided for in this Section 3.2 shall again become effective, and no transfer of such Offered Shares may complete be made thereafter by the Transferor Shareholder without again offering the same to the other Shareholder in accordance with this Section 3.2.
(d) Unless otherwise agreed by the Parties, the closing of the purchase and sale of the Sale Interest to Offered Shares shall take place at 1:00 p.m. local time at the Proposed Buyer in accordance with the terms and conditions registered office of the proposed sale as set out in the Proposed Sale Notice Company (or such other location as may be agreed by the Parties) on other terms no more favourable to the Proposed Buyer than those terms and conditions), within a period 10th Business Day after the last of 60 days (which period shall be extended until the 5th day following receipt of all Transfer any necessary Approvals (which must be sought with all reasonable dispatch), to the extent not obtained during the initial 60 day period, provided that the initial period can only be extended up to a maximum of 12 months) after:
(iii) in the circumstances outlined in clause 12.5(j)(i), the end of either the 60 day period referred to in clause 12.5(h) or the 60 day period referred to in clause 12.5(i) as the case may be; and
(iv) in the circumstances outlined in clause 12.5(j)(ii), the date of termination of the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants;
(k) if the whole of the Sale Interest is accepted by one or more of the Continuing Participants, then the Selling Participant will transfer the Sale Interest to those Continuing Participants in accordance with the terms and conditions of the resulting contracts with those Continuing Participants. For the avoidance of doubt, the transfer of the Sale Interest to those Continuing Participants is not subject to any further rights of last refusal under this clause 12.5; and
(l) for the avoidance of doubt, an offer made under clause 12.5(b) must relate only to the Sale Interest and must not include or relate to any other assetshas been received.
Appears in 1 contract
Sources: Shareholder Agreement
Right of Last Refusal. The following provisions apply in respect of any sale referred to in clause 12.4:
(a) the Selling Participant must give notice of the proposed sale to each of the other Participants, and must include in the notice (Proposed Sale Notice):
(i) the name and address of the person to whom the Selling Participant’s Joint Venture Interest is proposed to be sold (Proposed Buyer);
(ii) the portion of the Selling Participant’s Joint Venture Interest which is the subject of the proposed sale (Sale Interest);
(iii) the cash consideration or cash equivalent of the non-cash consideration for which the Selling Participant’s Joint Venture Interest is proposed to be sold; and
(iv) all the other terms and conditions of the proposed sale;
(b) the Selling Participant must include with the Proposed Sale Notice an offer to sell the Sale Interest to such of the other Participants who are not then in default in the payment of any Called Sums, and with respect to which an Event of Default is not ▇▇▇▇▇▇▇ + ▇▇▇▇▇ page | 50 then in existence (Continuing Participants), in proportion to their respective Joint Venture Interests, at the same price (being in the case of non-cash consideration, unless the Continuing Participants agree otherwise in relation to a royalty, the cash equivalent determined under this clause 12.5) and, subject to clause 12.6, on the same terms and conditions on which it is willing to sell the Sale Interest to the Proposed Buyer. The offer must be in a form which is capable of immediate acceptance by the Continuing Participants;
(c) if the consideration notified by the Selling Participant to the Continuing Participants under the Proposed Sale Notice is non-cash consideration, the Selling Participant must bona fide convert the non-cash consideration to a cash equivalent on a basis that is transparent and disclosed in the Proposed Sale Notice;
(d) if any Continuing Participant does not agree with the basis on which the non-cash consideration has been converted to a cash equivalent, that party must so notify the Selling Participant and the other Continuing Participants within seven (7) days of it receiving the Proposed Sale Notice;
(e) on a Continuing Participant so notifying the Selling Participant, all of the Participants will promptly meet and endeavour to reach agreement on the amount of the cash equivalent of the non-cash consideration. If agreement is reached, the Selling Participant must issue a new Proposed Sale Notice including the agreed cash equivalent. The period of 60 days referred to in clause 12.5(h) will be deemed to commence on the date that the Selling Participant issues a fresh Proposed Sale Notice and the original notification to the Continuing Participants will be deemed never to have been made. If within 14 days after their first meeting, the Selling Participant and the Continuing Participants have not reached agreement on the amount of the cash equivalent of the non-cash consideration, the matter will be referred to an Expert in accordance with clause 17 to determine whether or not the Selling Participant’s calculation of the cash equivalent was fair page | 49 and reasonable and, if not, to determine the Expert’s calculation of the amount of the cash equivalent;
(f) if the Expert determines that the Selling Participant’s calculation of the cash equivalent was fair and reasonable:
(i) the period of 60 days referred to in clause 12.5(h) will be deemed to have commenced on the date the Proposed Sale Notice was given provided that if the period of 60 days has expired or would expire prior to 14 days after the date upon which the Expert notifies the Participants of his determination, the 60 day period will be extended to the date which is 14 days after the date upon which the Expert notifies the Participants of the Expert’s determination; and
(ii) the Expert’s costs will be borne by the Continuing Participant who objected to the Selling Participant’s calculation of the cash equivalent;
(g) if the Expert determines that the Selling Participant’s calculation of the cash equivalent was not fair and reasonable:
(i) the Selling Participant must issue a fresh Proposed Sale Notice to the Continuing Participants in accordance with the requirements of clause 12.5(a) including the cash equivalent as determined by the Expert and the original Proposed Sale Notice will be deemed never to have been made; and
(ii) the Expert’s costs will be borne by the Selling Participant;
(h) the Continuing Participants will have the right to accept the offer set out in the Proposed Sale Notice at any time within a period of 60 days from the date the Proposed Sale Notice is given (subject to any extension under clause 12.5(f)), and such offer must remain open for that period;
(i) if one or more (but not all) of the Continuing Participants accept the offer within such 60 day period, the Selling Participant must notify the accepting Continuing Participant or Continuing Participants of details of the unaccepted portion of the Sale Interest and such Continuing Participant or Continuing Participants will have the right within a period of 60 days after the Selling Participant’s notice is given to accept the unaccepted part of the Sale Interest in proportion to their respective Joint Venture Interests (or as they may otherwise agree) at the same price and on the same terms and conditions;
(j) if:
(i) the whole of the Sale Interest is not accepted by one or more of the Continuing Participants; or
(ii) the whole of the Sale Interest is accepted by one or more of the Continuing Participants but the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants is terminated before completion for reasons other than for a default on the part of the Selling Participant, then the Selling Participant may complete the sale of the Sale Interest to the Proposed Buyer in accordance with the terms and conditions of the proposed sale as set out in the Proposed Sale Notice (or on other terms no more favourable to the Proposed Buyer than those terms and conditions), within a period of 60 days (which period shall be extended until the 5th day following receipt of all Transfer Approvals (which must be sought with all reasonable dispatch), to the extent not page | 50 obtained during the initial 60 day period, provided that the initial period can only be extended up to a maximum of 12 months) after:
(iii) in the circumstances outlined in clause 12.5(j)(i), the end of either the 60 day period referred to in clause 12.5(h) or the 60 day period referred to in clause 12.5(i) as the case may be; and
(iv) in the circumstances outlined in clause 12.5(j)(ii), the date of termination of the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants;
(k) if the whole of the Sale Interest is accepted by one or more of the Continuing Participants, then the Selling Participant will transfer the Sale Interest to those Continuing Participants in accordance with the terms and conditions of the resulting contracts with those Continuing Participants. For the avoidance of doubt, the transfer of the Sale Interest to those Continuing Participants is not subject to any further rights of last refusal under this clause 12.5; and
(l) for the avoidance of doubt, an offer made under clause 12.5(b) must relate only to the Sale Interest and must not include or relate to any other assets.
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