Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position. 17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company. 17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply. 17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”). 17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts. 17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts. 17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices. 17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect. 17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto. 17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation. 17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 4 contracts
Sources: Shareholders’ Agreement, Shareholders’ Agreement, Shareholders’ Agreement (Teekay Corp)
Deadlock. 17.1 The Shareholders shall use all reasonable endeavoursIf the Directors become deadlocked and unable to take an action with respect to, in relation or because of a lack of quorum at a duly called meeting fail to vote on or approve, any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of requiring the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting approval of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture CompanyDirectors in accordance with Sections 5.4, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it5.7 or otherwise (each matter, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock PeriodDisputed Matter”), then either any Director appointed by a Founder Member Group may, within ten (10) days of such deadlock or relevant meeting, notify the Shareholders other Directors that such Disputed Matter shall be voted on again by the Directors at a special meeting (the “OfferorSpecial Meeting”) may give notice in writing that shall be held no later than ten (the “Offer Notice”10) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day days following the date of receipt such notification. The Directors shall use their commercially reasonable efforts to discuss the Disputed Matter on which the Directors have been unable to agree during the period preceding the Special Meeting and shall vote on such matter at the Special Meeting. If at the Special Meeting, the Directors are unable to come to agreement on the Disputed Matter, the Disputed Matter shall be referred to a senior member of management of each Founder Member Group (a “Senior Officer”). Each such Founder Member Group shall use commercially reasonable efforts to cause its Senior Officer to meet and engage in discussions on the Disputed Matter within twenty (20) days of the Offer Notice date of the Special Meeting (or within such shorter period of time as may be necessary to take the action that is the subject of the Disputed Matter or otherwise permit resolution of the Disputed Matter in which to accept or decline the Offer by written notice to the Offerora timely fashion). If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all Senior Officers of the Shares Founder Member Groups reach agreement on the Disputed Matter, any such agreement will be set forth in writing and Shareholder Loans owned will be binding for all purposes as an action of the Company approved by the Offeror at a price equal Board as if the action approved in such agreement were approved by the Board directly in accordance with this Agreement. The Founder Member Groups shall direct the Directors designated by them to the Amounts.
17.6 take all such actions as may reasonably be necessary to reflect such agreement, including adopting any ratifying or confirmatory resolutions. If the Offeree declines Senior Officers are unable to reach agreement on the Offer or fails to respond to the Offer Notice Disputed Matter within the Acceptance Period the Offeree shall sell to the Offeror thirty (or such person as the Offeror shall nominate30) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each days of the Shareholders delivers an Offer Notice in date of the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar daySpecial Meeting, then the party whose Offer Notice specifies the higher Amounts Disputed Matter shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received considered not approved by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effectBoard.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 4 contracts
Sources: Limited Liability Company Agreement (Exco Resources Inc), Limited Liability Company Agreement (Harbinger Group Inc.), Limited Liability Company Agreement (Exco Resources Inc)
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes a) If at two successive meetings of the nominated Directors) in each Company jointly and in furtherance of Board the common position.
17.2 If there is Directors are unable to reach a dispute decision by the required vote regarding any Board Reserved Matter, or disagreement between if at two successive shareholders’ meetings the Shareholders as are unable to reach a decision by the required vote regarding any question which either of them Shareholder Reserved Matter (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicablea “Deadlock”), the Board or the Shareholders, as the case may be, shall refer the matter in question shall be considered at subject to the next meeting Deadlock to senior executives of the Board Shareholders, who shall attempt, through good-faith discussions, to resolve such matter within 30 days after referral to them of the Joint Venture CompanyDeadlocked issue (or, if mutually agreed by the Shareholders, a longer period of time). Any resolution agreed to by the Shareholders will be final and binding on the Company and the Shareholders.
17.3 (b) If at the next meeting issue subject to the Deadlock has not been resolved in accordance with Section 3.01(a) and if a Shareholder believes in good faith acting reasonably that the Company cannot be effectively operated or managed as a result of the Board Deadlock and if that Shareholder provides the other Shareholders a written explanation of the Joint Venture Company, no resolution is carried basis for this belief within 30 days after the expiration of the period described in relation to Section 3.01(a) (the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason“Initiating Shareholder”), then a within 30 days after the expiration of the period described in Section 3.01(a):
(i) if the Initiating Shareholder may give notice in writing is VIA, it will have the right (a “Deadlock NoticeCall Right”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith Toppan to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree purchase all of the Shares owned by Toppan and its Permitted Transferees, and
(ii) if the Initiating Shareholder Loans relating to is Toppan, it will have the Joint Venture Company right (the a “Deadlock CompanyPut Right”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell VIA to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall cause VIA to purchase from the Offeror all of the Shares and Shareholder Loans owned by Toppan and its Permitted Transferees.
(c) The purchase price payable by VIA upon the Offeror at exercise of a price Deadlock Call Right will be equal to 103% of the AmountsGoing Concern FMV of the Shares held by Toppan and its Permitted Transferees and the purchase price payable by VIA upon the exercise of a Deadlock Put Right will be equal to 97% of the Going Concern FMV of the Shares held by Toppan and its Permitted Transferees.
17.6 If (d) During the Offeree declines continuation of any Deadlock and before the Offer or fails closing of any sale and purchase pursuant to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of this Section 3.01, the Shareholders delivers an Offer Notice shall cause the Company to continue to operate in the terms set out in Clause 17.4 a manner consistent with its prior practices and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of this Agreement until the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidationis resolved.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 3 contracts
Sources: Shareholders Agreement (Via Optronics AG), Shareholders Agreement (Via Optronics AG), Shareholders' Agreement (Via Optronics AG)
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation to any matter which requires their unanimous agreement a. In the event the Members are deadlocked and are unable to agree unanimously on any Major Decision, and the Members are unable through good faith and the exercise of their reasonable efforts to break such deadlock for a common position and, subject to agreement being reached on such common position, to exercise their votes period of fifteen (and votes of the nominated Directors15) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give days following notice in writing (a “Deadlock Notice”) from one Member to the other referring Member that a deadlock exists with regard to a Major Decision, the matter in dispute and specifying that deadlock may be broken by the invocation of the provisions of Clause 17.4 this Section 12.07; provided, however, this Section 12.07 may be invoked if and only if such deadlock occurs after the date which is thirty (30) months from the date of this Agreement. Prior to invoking the provisions of this Article, the Members shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith meet within fifteen (15) days of such deadlock, and use their reasonable efforts to resolve any disagreements regarding any Major Decision. As used in this Section 12.07, “deadlock” shall mean the matter in dispute. inability of the Members to unanimously agree, whether or not BR Member has the voting power to control a vote, with respect to a Major Decision.
b. If the matter in dispute deadlock has not been resolved at within the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”)15 day period, then either of the Shareholders any Member (the “Offeror”) may give notice in writing (shall have the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period right to deliver to the other Member(s) a notice (herein referred to as the “"Notice") which shall contain (i) an offer to (a) purchase the Membership Interests of the other Member(s) (herein referred as the "Offeree”") offering or (b) to sell to the Offeree all of the Shares Offeror’s Membership Interest; and Shareholder Loans relating to (ii) the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror price for the amount Membership Interests on a per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified interest basis, which shall be same in the Offer Notice event of a sale or purchase (the “Offer”).
17.5 Subject . The Offer shall be irrevocable for a period (herein referred to Clause 17.6as the "Option Period") of sixty (60) days after Offeree’s receipt of the Notice. The Offeree shall have the exclusive right and option (herein referred to as the "Option") during the Option Period to either accept the Offeror's Offer to purchase the Offeree’s Membership Interests, or agree to purchase Membership Interests of the Offeror at the same price provided for in the Offer. If the Offeree fails to exercise the Option to purchase during the Option Period, the Offeree shall have a period of 20 Business Days (no further rights to purchase under the “Acceptance Period”) commencing with Option. In such event, if the Business Day following Offer is to purchase the date of receipt Membership Interest of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Periodother Member(s), then the Offeror shall have the right and obligation, on or before thirty (30) days after the expiration of the Option Period, to purchase those Membership Interests for the price and under the terms specified in the Notice; provided, however, in connection with such transfer of a Member’s Membership Interests pursuant to this Section 12.07, any such transfer must comply with applicable Lender requirements under the Loan Documents , with respect to which the Offeror shall make commercially reasonable efforts to obtain all required Lender approvals, and , in the case of BR Member being the Offeror, shall as a condition of the purchase cause Stonehenge Member and its Affiliates (which, for purposes of this Section 12.07(b) shall include Cumberland Ventures, L.P. and T▇▇▇ ▇▇▇▇▇▇▇▇▇) who have executed any Loan Guaranty in favor of Lender in connection with the transactions contemplated herein, cause them to be removed or released from such guaranty, and, furthermore, shall cause the Letter of Credit to be (1) replaced or (2) released in full such that Lender no longer requires the Letter of Credit to remain outstanding under the Loan; provided, however, if the BR Member cannot satisfy those conditions it shall not be required to buy, and Stonehenge shall not be required to sell, such Membership Interest of Stonehenge Member, and any such deadlock shall instead be resolved by the Members proceeding to market and sell the Project for commercially reasonable terms. Furthermore, notwithstanding the above, if the Offer is to sell the Offeror’s Membership Interest (i.e., put the Offeror’s Membership Interests to the Offeree (or such person as the Offeree shall nominateOfferee) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails Option (i.e., refuses to respond buy the Offeror’s Membership Interest), then, to resolve a deadlock in that circumstance, the Members shall proceed to market and sell the Project for commercially reasonable terms.
c. The closing of the purchase and sale contemplated hereunder shall be held at the time and place designated by the purchasing Member(s) by notice to the Offer selling Member(s) which date shall be on or before ninety (90) days after the Notice within is received. The purchase price shall be paid in cash. Each party shall bear their own attorneys fees incurred in connection with closing; costs of closing shall be shared equally between the Acceptance Period the Offeree Members. A selling Member shall sell to the Offeror (or such person as the Offeror shall nominatetransfer its Membership Interest(s) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out Company and in Clause 17.4 the assets thereof by appropriate transfer, assignment, b▇▇▇ of sale or deed, free and each clear of such notices all liens and encumbrances. In the event a Member defaults in its obligation to perform at closing, then if the defaulting Member is received or deemed the party required to be received upon the same calendar daysell its Membership Interest(s), then the party whose Offer Notice specifies the higher Amounts non-defaulting Member(s) shall be deemed entitled to be pursue all remedies at law or in equity against the Offeror for defaulting Member, and if the purposes of Clause 17.4 and defaulting Member is the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that party required to purchase the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receiptMembership Interest(s) of the Offer Noticesnon-defaulting Member, then the non-defaulting Member shall be entitled, as its sole and exclusive remedy, to seek liquidated damages in the amount of ten percent (10%) of the purchase price of the Membership Interest(s) as set forth in the Notice, not to exceed $300,000.00, the parties acknowledging that damages in such event are difficult to predict and that the aforesaid amount constitutes a reasonable estimation of the same.
17.8 Subject d. Each Member shall be entitled to: (i) obtain information regarding the Property and the Company; and (ii) access the Property, and the Manager, the Developer, the property manager and personnel of the Company, in connection with this Section 12.07 in order to Clause 17.6make an informed decision, if including, without limitation the rights to obtain appraisal reports, financial statements and conduct an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day audit.
e. From and after the calendar day on which an Offer Notice from invocation of the other party is received by the First Partyrights and obligations set forth in this Section 12.07, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified Company shall not be less than 14 nor more than 21 Business Days after permit Owner to sell the expiry of Property unless and until the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis theretoparties have allowed all time periods set forth in this Section 12.07 to fully lapse.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 2 contracts
Sources: Operating Agreement (Bluerock Enhanced Multifamily Trust, Inc.), Operating Agreement (Bluerock Enhanced Multifamily Trust, Inc.)
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours(a) If at any time there is an inability of the Members to agree, despite good faith efforts to reach agreement, on a course of action in relation to respect of any material matter which requires their unanimous agreement and such inability persists for at least 30 days after such inability first arises and if any Member reasonably believes that such inability to agree has had or is reasonably expected to result in a common position andMaterial Adverse Effect (a "Deadlock Event"), subject then either Member may request that such Deadlock Event be immediately submitted for resolution to agreement being reached on the Chairman of ECD and the President of CTTV (or such common position, to exercise their votes (other senior executive of CTTV or its Affiliates as CTTV may designate). Such request shall be in writing and votes shall be accompanied by the requesting Member's statement of the nominated Directors) in each Company jointly matter and in furtherance its position with respect thereto. The other Member shall have the right to submit to such officers its own statement of the common positionmatter and its position with respect thereto.
17.2 (b) If there such matter is a dispute or disagreement between the Shareholders as to any question which either of them not resolved within thirty (in its sole judgement30) shall consider is of fundamental importance to the future days of the Joint Venture Companysubmission of such matter to such officers, or its Business, then at then: AMENDED AND RESTATED OPERATING AGREEMENT COBASYS LLC
(i) no action will be taken with respect to such matter and the option of either Shareholder (as applicable), the matter in question status quo shall be considered at maintained in respect thereof, and
(ii) either Member (the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution "Electing Member") who is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then not a Shareholder Defaulting Member may give notice in writing declare a deadlock (a “"Deadlock") by delivering a written notice (a "Deadlock Notice”") to the other referring to Member at any time for a period of sixty (60) days beginning at the matter in dispute end of such 30-day period stating that a Deadlock has occurred and specifying that the provisions valuation of Clause 17.4 the Company (as to which the aggregate Preferred Interest Amount(s) shall apply.
17.4 Following service be treated as a liability of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other Company) (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve "Designated Valuation") based on which the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above Electing Member (or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either any Affiliate of the Shareholders (the “Offeror”Electing Member designated by it) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree agrees that it will either purchase for cash all of the Shares and Shareholder Loans relating to the Joint Venture Company other Member's (the “Deadlock Company”"Accepting Member") which are owned by the Offeror Interest or sell for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror cash all of the Shares and Shareholder Loans owned by the Offeror at a price equal Electing Member's Interest to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror Accepting Member (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each any Affiliate of the Shareholders delivers an Offer Notice Accepting Member designated by it); provided that if the Members are unable to agree whether such persistent inability to agree has had or will have a Material Adverse Effect, such question shall be determined in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period affirmative pursuant to the terms set out in Clause 17.4 either party Section 11.11 before any purchase of a Member's Interest may elect occur pursuant to place the Joint Venture Company in liquidationthis Section 2.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 2 contracts
Sources: Operating Agreement (Energy Conversion Devices Inc), Operating Agreement (Chevrontexaco Corp)
Deadlock. 17.1 The (a) A deadlock (“Deadlock”) shall be deemed to have occurred if:
(i) ESR and CCG fail to agree the first Budget or the first Business Plan within 12 months after the date of this Agreement (or such longer period as ESR and CCG may agree);
(ii) a resolution proposed for the approval of any Reserved Matter is not passed in accordance with Clause 7.2 on at least 2 occasions; or
(iii) there has been a failure to convene 3 successive meetings of the Shareholders and/or the Board to agree on any Reserved Matter, in which event the provisions in Schedule 4 shall apply.
(b) In the case of a Deadlock, any Shareholder may send a written notice to the other Shareholder(s) (“Deadlock Consultation Notice”) requiring the Deadlock to be considered and resolved in physical meeting(s) and/or telephone conference(s) (“Deadlock Consultation”) between the chief executive officer (or, if there is no position of the chief executive officer, such senior person in a similar position) of the ultimate Controlling beneficial owner of each Shareholder (other than any Non- Funding Shareholder or Defaulting Shareholder (as the case may be)) (“Senior Management”) within 30 days of the date of the Deadlock Consultation Notice (“Deadlock Consultation Period”). If the Deadlock is resolved in the Deadlock Consultation, the Shareholders shall use all jointly execute a statement setting forth the terms of such resolution and each Shareholder shall exercise the voting rights and other powers of control available to it in relation to the Company and each other Group Company to procure that such terms of resolution is fully and promptly carried into effect.
(c) If the Deadlock concerned is not resolved as contemplated in Clause 7.3(b) within the Deadlock Consultation Period, and if such Deadlock is under Clause 7.3(a)(i) or relates to a Key Reserved Matter, notwithstanding Clauses 9.1(a) and 9.1(b), then at any time within 120 days after expiry of the Deadlock Consultation Period or confirmation by the Senior Management that the Deadlock concerned is not resolved as contemplated in Clause 7.3(b) (“Deadlock Buy-Sell Offer Period”), as long as the matter relating to such Deadlock has not been resolved by the relevant Shareholders, any Shareholder (other than any Non-Funding Shareholder or Defaulting Shareholder (as the case may be)) who has been acting in good faith and in a reasonable endeavoursmanner in the dealings relating to the Deadlock in question (each a “Deadlock B/S Initiating Right Holder”) shall have the option to initiate the Buy-Sell Exit Procedures set forth in Schedule 4 with respect to which such Deadlock occurs (“Deadlock Buy-Sell Exit”).
(d) The Parties agree and acknowledge that no action shall be taken by any of the Group Companies, and the status quo shall be maintained, in relation to any matter which requires their unanimous agreement Reserved Matter that is the subject of a Deadlock, save that each Shareholder shall continue to agree a common position and, subject take all necessary steps to agreement being reached on such common position, to exercise their votes (ensure statutory and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance regulatory compliance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned extent required by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer Applicable Laws by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer NoticesGroup Companies.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Shareholders’ Agreement
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes a) If at two (2) successive meetings of the nominated Directors) in each Company jointly and in furtherance of Board, the common position.
17.2 If there is Directors are unable to reach a dispute or disagreement between decision by the Shareholders as to required vote regarding any question which either of them the matter submitted for consideration by the Board at such meetings (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicablea “Deadlock”), the Board shall refer the matter subject to the Deadlock to the Class B Stockholders, who shall vote on such matter and, if the stockholder vote results in question a Deadlock, attempt to resolve such matter within twenty (20) days after referral to them of the issue subject to a Deadlock (or, if mutually agreed by the Class B Stockholders, a longer period of time). Any resolution agreed to by the Class B Stockholders shall be considered at final and binding on the next meeting Company and the Stockholders.
(b) If the issue subject to the Deadlock has not been resolved in accordance with Section 2.03(a), then within fifteen (15) days of the Board of written determination by the Joint Venture Company.
17.3 If at Class B Stockholders that no agreement can be reached with respect to such issue (the next meeting of “Call Period”), the Board of Xcel Stockholder shall have the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing right (a “Deadlock NoticeCall Right”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other Hilco Stockholder (the “Nominated Senior ExecutivesCall Notice”). The Nominated Senior Executives shall meet within 20 days ) to purchase all (and seek in good faith to resolve not less than all) of the matter in disputeClass B Common Stock owned by the Hilco Stockholder and its Permitted Transferees. If the matter in dispute Hilco Stockholder has not been resolved at received from the meeting referred Xcel Stockholder a Call Notice prior to above the expiration of the Call Period, the Hilco Stockholder shall have the right (a “Put Right”) (exercisable within fifteen (15) days following the expiration of the Call Period) to require the Xcel Stockholder to purchase all (and not less than all) of the Class B Common Stock held by the Hilco Stockholder and its Permitted Transferees.
(c) The purchase price payable by the Xcel Stockholder upon the exercise of a Call Right or following such further period Put Right, as the Nominated Senior Executives case may agree be, shall be equal to either (i) in the event that the Class A Common Stock is listed for trading on the NASDAQ Stock Market, the New York Stock Exchange, the NYSE American stock exchange, or another national securities exchange, or quoted on the OTC bulletin board or other over the counter market, the per share purchase price shall be equal to the average closing sale price for the last ten (10) trading days of the Class A Common Stock or (ii) the appraised value of the Common Stock held by the Hilco Stockholder and its Permitted Transferees calculated as a proportion (based on the Common Stock ownership percentage of the Hilco Stockholder) of the overall fair market value of the Company determined on a going concern basis as between a willing buyer and willing seller with no discounts for lack of liquidity or a minority interest, which shall be determined in accordance with the procedures set forth below (the “Deadlock PeriodAppraised Value”), then either ):
(i) Within fifteen (15) days of the Shareholders exercise of the Call Right or Put Right, as the case may be, the Class B Stockholders shall appoint [NAME OF ACCOUNTING FIRM] or such other firm of independent accountants of national standing to which the Class B Stockholders agree and which has not provided substantial services to the Company, any Class B Stockholder, or any of their respective Affiliates within the preceding two (2) years (the “OfferorIndependent Accountant”) may give notice to determine the Appraised Value of the Common Stock held by the Hilco Stockholder and its Permitted Transferees. The Class B Stockholders shall instruct the Independent Accountant to render its determination of the Appraised Value in writing within thirty (the “Offer Notice”30) within the period days of 10 Business Days following expiry such Independent Accountant's appointment. The determination of the Deadlock Period Independent Accountant shall be final for all purposes of this Section 2.03. The costs and expenses of the Independent Accountant shall be borne equally by the Class B Stockholders.
(ii) To enable the Independent Accountant to conduct the valuation, the Class B Stockholders and the Company shall furnish to the other Independent Accountant such information as the Independent Accountant may request, including information regarding the Business and the Company's assets, properties, financial condition, earnings, and prospects.
(d) Within fifteen (15) days after the “Offeree”) offering date of the final determination of the Appraised Value (which period shall be extended solely to the extent needed to obtain any required Government Approvals, provided, that the Hilco Stockholder shall, and shall cause its Permitted Transferees to, have used their reasonable best efforts to obtain such approval in a timely manner), the Hilco Stockholder shall, and shall cause its Permitted Transferees to, sell to the Offeree Xcel Stockholder, free and clear of any Liens, all of the Shares Class B Common Stock held by them.
(e) Each Stockholder shall take all actions as may be reasonably necessary to consummate the sale contemplated by this Section 2.03, including entering into agreements and Shareholder Loans relating delivering certificates and instruments and consents as may be deemed necessary or appropriate.
(f) At the closing of any sale and purchase pursuant to this Section 2.03, the Hilco Stockholder shall, and shall cause its Permitted Transferees to, deliver to the Joint Venture Company Xcel Stockholder the certificate or certificates representing their Common Stock (the “Deadlock Company”) which are owned if any), accompanied by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” stock powers and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6all necessary stock transfer taxes paid and stamps affixed, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of if necessary, against receipt of the Offer Notice in which to accept purchase price therefor from the Xcel Stockholder by certified or decline official bank check or by wire transfer of immediately available funds.
(g) During the Offer by written notice continuation of any Deadlock and prior to the Offeror. If the Offeree accepts the Offer within the Acceptance Periodclosing of any sale and purchase pursuant to this Section 2.03, the Offeror Company shall sell continue to the Offeree (or operate in a manner consistent with its prior practices and this Agreement until such person time as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the AmountsDeadlock is resolved.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Stockholders Agreement (Longaberger Licensing, LLC)
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, following sets forth the Parties' agreement with respect to a deadlock situation. In the event that:
(a) either of Mutual or Walbro (in relation this subsection called "the First Party") gives written notice to any matter which requires their unanimous agreement to agree a common position and, the other Party (in this subsection called "the Second Party") specifying as subject to agreement being reached on such common position, to exercise their votes (and votes this subsection a resolution requiring the affirmative vote of a majority of the nominated Directors) in each Company jointly and in furtherance Board, or the unanimous approval of the common position.
17.2 If there is shareholders, which resolution was previously put to and not passed by a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board or shareholders, as applicable, because the Second Party or its designee Member present did not vote in favor of the Joint Venture Company.resolution or voted against the resolution, or the Second Party or its designee Member were not present for the vote; and
17.3 If (b) such resolution is again put at the next another such meeting called within 30 days of the Board of original meeting and the Joint Venture CompanyFirst Party or its designee Member present, no resolution is carried in relation to as the matter by reason of an equality of case may be, votes for and the resolution but the Second Party or its designee Member, as the case may be, does not vote or votes against any proposal for dealing with itthe resolution, or the Second Party or its designee Member, as the case may be, are not present for any other reasonthe vote, then a Shareholder deadlock situation will be deemed to have arisen. Within seven days of such event arising, Walbro or Mutual, as the case may give notice in writing (a “Deadlock Notice”) be, will prepare and circulate to the other referring to a memorandum or other form of statement setting out its position on the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter its reasons for adopting such position. Each such memorandum or statement will be referred to considered by the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days of Mutual and seek in good faith of Walbro who will respectively use their reasonable efforts to resolve the matter in such dispute. If the matter Parties agree upon a resolution of the dispute, they will jointly sign a statement setting forth the terms of such resolution and Walbro and Mutual will exercise all voting rights and other powers of control available to them in relation to the JV to procure that such resolution is fully and promptly carried into effect. If a resolution of the dispute has is not been resolved at agreed upon within 30 days after delivery of the meeting referred to memorandum or statements mentioned above or following such further longer period as the Nominated Senior Executives Walbro and Mutual may agree (in writing, the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice JV will automatically terminate as prescribed in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned ARTICLE VII. If a resolution is agreed upon by the Offeror for Parties but is not implemented by the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on JV within 60 days after such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offereeagreement, or such person longer period as the Offeree shall nominate, shall purchase from the Offeror all of the Shares Walbro and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice Mutual may agree in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Partywriting, the Offer Notice received on the later calendar day shall be of no effectJV will automatically terminate as prescribed in ARTICLE VII.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation 8.1 In the event that:-
(a) a material matter relating to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes the affairs of the nominated Directors) in each Company jointly and in furtherance of or the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be Holding Company has been considered at the next a meeting of the Board directors of the Joint Venture Company.
17.3 If at Company or the next meeting Directors of the Board Holding Company (as the case may be) and/or the parties;
(b) no agreement has been reached by the directors of the Joint Venture Company, no resolution is carried in relation to Company or the matter by reason Directors of an equality of votes for and against any proposal the Holding Company (as the case may be) or the parties for dealing with it, the said matter in accordance with the provisions of this Agreement; and
(c) such matter is not resolved within 30 days from the date of such disagreement (with such 30 day period measured from the time that one party gives the other written notice of the deadlock) the parties hereto agree that they shall attempt to settle by negotiations between them in good faith all disputes or for any differences which arise between them out of or in connection with this Agreement (provided both parties consider that such negotiations would be assisted thereby) by referring the matter to the President of the Institute of Certified Public Accountants or such other reason, then a Shareholder may give notice in writing conciliator appointed by such person (a “Deadlock NoticeConciliator”) to assist the parties in such negotiations. Both parties agree to co-operate fully with the Conciliator and provide such assistance as is necessary to enable the Conciliator to discharge his or her duties, and to bear equally between them the fees and expenses of the Conciliator.
8.2 If any such meeting fails to result in a settlement, each party shall make an offer to purchase all the Shares of the other referring Shareholder by delivering to the matter in dispute and specifying that the provisions Holding Company Secretary a notice of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 intention to purchase the Shares and/or of the other Shareholder Loans (“Notice of Intention”). Such Notice of Intention shall state the price of the Shares at which are owned the Shareholder intends to purchase.
8.3 Upon delivering the Notice of Intention, the Shares shall be purchased within 30 days by the other (Shareholder who offers the “Vendor”higher price, whereupon the selling Shareholder shall, provided the purchase price therefor is paid, be obliged to deliver to the purchasing Shareholder properly signed and stamped and authenticated share transfers together with the relevant scrip and the written resignation of its appointee(s) as a director(s) effective forthwith or to take effect immediately subsequent to a Board meeting, at which meeting the sale transfer of such the said Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as approved by the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis theretoBoard.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Global Tech Appliances Inc)
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation to any matter which requires their unanimous agreement If a deadlock arises because the Board fails to agree on any of the Reserved Matters or any other management matter requiring its decision, the matter shall be referred for resolution to a common position andDirector who is not also employed as an executive of a party or any Affiliate of such party (an Outside Director) of each of Financial Times and MarketWatch with a view to it being resolved as early as possible in the best interests of the JVC. Each party shall endeavour, subject and shall instruct their Outside Directors to agreement being reached on such common positionendeavour, to exercise their votes (and votes resolve any disagreement in the best interests of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 JVC. Shareholder deadlock 10.4 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance relating to the future of JVC's affairs cannot be resolved within thirty days after referring the Joint Venture Companydispute to the parties' respective Outside Directors pursuant to clause 10.3 (a shareholder deadlock), and the Shareholder Deadlock is with respect to a Reserved Matter or its otherwise materially adversely affects the JVC's ability to carry on the Business, then at either party may give written notice (a Warning Notice) that it intends to implement the option of either Shareholder deadlock procedure provided in this clause 10. If the dispute cannot be resolved within thirty (as applicable), the matter in question shall be considered at the next meeting 30) days of the Board of Warning Notice, either party may within a further thirty days notify the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service such fact. A Deadlock Notice is irrevocable. Deadlock Notice 10.5 Within a period of thirty days after receiving a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts both parties shall be deemed required to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out concur in Clause 17.4 either party may elect taking all steps required promptly to place the Joint Venture Company JVC into liquidation. Default (including Insolvency) Event of Default 11.1 It is an Event of Default in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject relation to the provisions of the Time Charters.either party (a Defaulting Party):
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Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, 13.1 A deadlock will occur if a resolution is proposed in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes duly convened meeting of the nominated Directors) in each Company jointly and in furtherance board of directors or at a duly convened meeting of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Businessif a request for approval contemplated by Clause 5.1 is made, then and:
(a) a quorum is not achieved at the option meeting other than through the non-attendance of the proposer of the resolution and a quorum is also not achieved at any adjourned meeting; or
(b) if either Shareholder (as applicablei) KSB or both the A Directors nominated by KSB (or if only one such director is present, that A Director) or (ii) BBT or both the B Directors nominated by BBT (or if only one such director is present, that B Director), (other than in either case the matter proposing party, or the director or directors nominated by the proposing party) votes against the resolution or abstains from voting; or
(c) in question shall be considered at the next meeting case of a request for approval under Clause 5.1, such approval is not forthcoming within 20 Business Days of the Board date the request is received in writing.
13.2 KSB or BBT may within 30 days of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation event that has given rise to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give deadlock serve notice in writing (a “Deadlock Notice”) to on the other referring to party stating that in its opinion a deadlock has occurred and identifying the matter in dispute and specifying that over which the provisions of Clause 17.4 shall applyparties are deadlocked.
17.4 Following 13.3 The parties undertake that following service of a the Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives Notice they shall meet within 20 days and seek attempt in good faith to resolve the matter in disputedeadlock promptly by negotiation between senior executives of KSB and BBT. If the matter in dispute has not been resolved at the meeting referred such senior executives are unable to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either reach a mutually acceptable resolution of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) deadlock within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day 30 days following the date of receipt of the Offer Notice in which Deadlock Notice, KSB and BBT undertake to accept or decline submit the Offer by written notice matter to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms mediation procedures set out in Clause 17.4 and 13.4, upon receipt of a written request (the “Mediation Notice”) therefor by either KSB or BBT within a period of 45 days following the Deadlock Notice.
13.4 If either party by notice in writing under Clause 13.3 invokes mediation, then senior executives from each of KSB and BBT shall mutually agree upon a mediator within England. Each of them shall propose a list of up to five names within 10 Business Days of the date of the Mediation Notice. Each such notices is received or deemed to name proposed shall be received upon of an independent third party with appropriate experience and expertise. If any of the names are the same calendar day, the parties shall agree upon a mediator from the names they have jointly proposed. If none of the names are the same then the party whose Offer Notice specifies who initiates mediation shall select a mediator from the higher Amounts list provided by the non-initiating party. All lists of mediators shall be deemed include a full resume for each mediator named on the list. The parties shall complete the process of selecting a mediator within 15 Business Days of the date of the Mediation Notice.
13.5 If neither KSB nor BBT elect to be appoint a mediator within the Offeror for stipulated period or they are unable to resolve the purposes deadlock within 30 days from the date of Clause 17.4 such appointment then this Agreement will terminate and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall Company will be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Noticeswound up in accordance with Clause 18.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
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Deadlock. 17.1 The Shareholders shall use all reasonable endeavours7.1 If:
7.1.1 the Board or any Board committee is unable to pass a resolution on an Affirmative Vote Matter that has been put to it in a duly convened meeting (including Adjourned Board Meeting, if any), because the Director nominated by the Shareholder whose Consent is needed for such Affirmative Vote Matter has not voted in relation favor of it or has communicated its disapproval with respect to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.Affirmative Vote Matter or has not been present at such meeting; or
17.2 If there is a dispute or disagreement between 7.1.2 the Shareholders as are unable to any question pass a resolution on an Affirmative Vote Matter, which either has been put to them in a duly convened meeting (including Adjourned General Meeting, if any) because the Shareholder whose Consent is needed for such Affirmative Vote Matter has not voted in favor of them it or has communicated its disapproval with respect to such Affirmative Vote Matter or has not been present at such meeting, (the situations in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture CompanyClauses 7.1.1and 7.1.2, or its Businesseach, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock PeriodMatter”), then either of the Shareholders Investor or the Shareholder whose consent was needed for such Affirmative Vote Matter may refer the unresolved matter to such Party’s chairman/chief executive officer or such other senior representative nominated by such Party (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (such nominated individuals, the “Deadlock CompanyAppointees”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by sending written notice to the OfferorDeadlock Appointees along with a copy to all Parties.
7.2 The resolution agreed by the Deadlock Appointees in the manner provided in this Clause 6.5 shall be final and binding on the Investor and the relevant Shareholder, and the Deadlock Matter shall be resolved accordingly. Until the Deadlock Matter is so resolved, the Company shall continue to operate in accordance with the terms of this Agreement and its Articles of Association.
7.3 If the Offeree accepts Deadlock Appointees are not able to resolve the Offer Deadlock Matter within the Acceptance Period, the Offeror shall sell to the Offeree thirty (or such person as the Offeree shall nominate30) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all Business Days of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice referral noted in the terms set out in final paragraph of Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day7.1, then the party whose Offer Notice specifies Affirmative Vote of the higher Amounts Shareholder shall be deemed to be the Offeror for the purposes of Clause 17.4 have prevailed and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period Deadlock Matter shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effecthave been resolved as such.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
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Deadlock. 17.1 The 16.1 This Clause shall apply in any case where a matter relating to the affairs of the Holding Company has been considered by the Board of Directors but the Board of Directors is unable to reach a unanimous decision where required by Clause 10.2, on the matter or in the event that a meeting of the Board of Directors has been convened in accordance with 10.7 herein and no quorum in accordance with 10.8 has been achieved at said meeting or subsequent reconvened meeting called within the next 10 Days. Any such case is hereinafter referred to as a "deadlock". For purposes of this Clause 16, Drillpetro and Techdrill shall be deemed to be one Shareholder for as long as they are under common control.
16.2 In any case of deadlock, each of the Shareholders shall within seven (7) Days of such deadlock having arisen or become apparent, cause its appointees on the Board of Directors to prepare and circulate to the other Shareholders and other Directors a memorandum or other form of statement setting out its position on the matter in dispute and its reasons for adopting such position. Each such memorandum or statement shall be considered by the Managing Director (or equivalent officer) of each Shareholder then holding office who shall respectively use all their reasonable endeavours, endeavours to resolve such dispute. If they agree upon a resolution or disposition of the matter they shall jointly execute a statement setting forth the terms of such resolution or disposition and the Shareholders shall exercise the voting rights and other powers of control available to them in relation to the Holding Company to procure that such resolution or disposition is fully and promptly carried into effect.
16.3 If the dispute has not been resolved in accordance with the provisions set out above within fifteen (15) Days after delivery of the memorandum or statement mentioned herein or such longer period as the Shareholders may agree in writing then any matter Shareholder (the "Offeror") may serve a notice in writing (the "Offer Notice") on both of the other Shareholders (the "Offerees") of its desire to resolve the position by offering to sell its Shares (the "Offerors Shares") to the Offerees pro-rata to each of the Offerees participation in the Holding Company or, failing which, to purchase one or both of the Offerees, Shares at the same price.
16.4 The Offer Notice shall be expressed to:
(i) constitute an offer, open for acceptance by each Offeree for 90 Days from the date of service of the Offer Notice ("Offeree Purchase Period") by the Offeror to sell at a specified price (the "Sale Price") (but on no other conditions) all (but not some only) of the Offeror's Shares to each of the Offerees pro-rata to the Offerees participation in the Holding Company;
(ii) constitute an Offer by the Offeror to purchase all (but not some only) of each of the Offeree's Shares at the Sale Price in accordance with the provisions of this paragraph on the business day (as defined in Clause 20.3) falling 30 Days after the end of the Offeree Purchase Period provided that such Offeree has not exercised its right to purchase the Offerors Shares before the end of the Offeree Purchase Period; and
(iii) be irrevocable without the written consent of all Shareholders.
16.5 Each Offeree may at any time before the expiry of the Offeree Purchase Period serve notice in writing upon the Offeror of its desire to purchase all (but not some only) of the Offeror's Shares offered to it at the Sale Price (the "Offeree Purchase Notice") which requires their unanimous agreement may not be expressed to agree a common position and, be subject to agreement being reached the fulfillment of any conditions whatsoever. Upon service of an Offeree Purchase Notice on such common positionthe Offeror, the Offeror shall be bound to exercise their votes (sell, and votes the Offeree shall be bound to purchase, all the Offerors Shares offered to it at the Sale Price, which the Offeror shall transfer free from all claims, equities, liens and encumbrances together with all rights attached thereto,
16.6 If either Offeree does not serve an Offeree Purchase Notice before the expiry of the nominated DirectorsOfferee Purchase Period, it shall be deemed to have declined the offer constituted by the Offer Notice to sell the Offeror Shares to the Offeree and such Offeree shall be bound to sell, and the Offeror shall be bound to purchase, all such Offeree's Shares at the Sale Price and which such Offeree shall transfer free from all claims, equities, liens, charges and encumbrances together with all rights attached thereto.
16.7 Completion of any sales and purchases contemplated by this Clause 16 shall take place within fourteen Days of such sale and purchase obligation becoming binding as above written and the selling party(ies) shall deliver to the purchasing party(ies) executed transfer(s) and documents of title in each exchange for a banker's draft drawn on a first class U.S. bank for an amount equal to the relevant Sale Price. Each of the Shareholders appoints the other Shareholders irrevocably and by way of security for the performance of their respective obligations under this Clause 16 its attorney to execute any necessary document required to be executed by it under the provision of this Clause 16.
16.8 In the event that more than one Offer Notice is served, the notice first served shall prevail. In the event that more than one Offer Notice is served simultaneously, then the Offer Notice with the higher Sale Price shall prevail.
16.9 In the event that, at the time of any failure to find a resolution or disposition in accordance with sub-clause 16.3 above, there are only two Shareholders, the provisions of this Clause 16 shall apply mutatis mutandis.
16.10 In the event that a Party, pursuant to the provisions of this Clause 16 or those of Clause 14 (Transfer of Shares), has disposed or is disposing of the whole of its interest in the Holding Company jointly (the "Disposing Party"), then if the Disposing Party has during the course of its participation in the joint venture been required to provide to any Lender or Lenders guarantee(s) of the performance by the Holding Company of any of its obligations under any loan or security documentation executed in favour of such Lender(s) or any counter indemnities in favour of any third party(ies) and such guarantee(s) or counter indemnities is/are still outstanding and in furtherance full force and effect at the time of the common position.
17.2 If there is a dispute or disagreement between disposition by the Shareholders as to any question which either Disposing Party of them (its interest in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Holding Company, or its Business, then at the option of either Shareholder (as applicablethe Disposing Party and having regard to the requirements of any Lender(s), either:-
(i) the matter acquirer of such interest from the Disposing Party or the remaining Shareholder(s) shall issue replacement guarantee(s)/counter indemnities in question favour of and satisfactory to such Lender(s)/third party(ies) on the same terms as those guarantee(s)/counter indemnities originally provided to such Lender(s)/third party(ies) by the Disposing Party whose guarantee(s)/counter indemnities shall then be deemed terminated; or
(ii) the acquirer of such interest or the remaining Shareholder(s) shall be considered at obliged to procure the next meeting issue of an indemnity in favour of the Board Disposing Party and its Affiliate(s) in respect of such guarantee(s)/counter indemnities by a company of substance or reputable bank or lending institution acceptable to the Joint Venture CompanyDisposing Party and in a form reasonably satisfactory to the Disposing Party.
17.3 If at 16.11 In the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then event that a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period has pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of this Clause 16 or those of Clause 14, disposed of the Time Charterswhole of its Interest in the Holding Company, that Party shall be entitled to receive for the benefit of its relevant Affiliate from the acquirer or acquirers of aforesaid interest an early termination fee for termination of management (if that occurs) equal to the aggregate of the number of Days of management fee lost between date of transfer of sale of shares and the final date of the firm term of the Charter discounted at ten per cent (10%) per annum.
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Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation to 14.1 Where any decision or matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be has been considered at the next meeting 3 (three) consecutive meetings of the Board (or by written circulation), Committee or General Meetings (save where all the Directors or where Blackstone Group and Panchshil Group vote against the resolution), and the lack of resolution on such matter affects the Joint Venture Company.
17.3 If at Business adversely in the next meeting opinion of Blackstone Group or Panchshil Group, the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (same shall constitute a “Deadlock NoticeSituation”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service 14.2 Upon the occurrence of a Deadlock NoticeSituation, either Shareholder the relevant/disputing Parties shall mutually discuss the Deadlock Situation for a period of 45 (forty five) days (the “Resolution Period”). During such Resolution Period, each Party may request consult with any senior executive of such Party or its Affiliate, or may nominate such a senior executive to discuss the matter be referred Deadlock Situation with a senior executive nominated by the other Party so as to reach a decision regarding the Chief Executive Officers Deadlock Situation within the Resolution Period. In the event that the Parties or such appropriate the senior executives as such Shareholder nominated by the Parties do not reach a decision regarding the Deadlock Situation, the disputing Party may nominate choose to refer the Deadlock Situation to a Third Party conciliator by written issuing a notice to the other Parties, in which case the disputing Party and the respondent Party shall mutually agree on a Third Party conciliator, who shall facilitate a decision regarding the Deadlock Situation within 30 (thirty) days from date on which the Deadlock Situation is referred to him, provided always that such facilitation of the Third Party conciliator shall not be binding on the Parties.
14.3 Until such time that a Deadlock Situation is resolved in accordance with the provisions of this Clause 14:
(a) where the Deadlock Situation refers to any matter already contemplated in the Business Plan, then the position under the prevailing Business Plan shall continue to apply; and
(b) where the Deadlock Situation relates to any other proposed resolution to be passed or action to be taken by the Board or the Parties, the Company and the Business shall continue “Nominated Senior Executivesas is”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute , as if such resolution has not been resolved at or such action has not been permitted to be taken, as applicable and the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6maximum extent permitted under applicable Laws, the Offeree shall have a period of 20 Business Days (Parties hereby agree to procure the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amountsforegoing.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Shareholder Agreements
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours(a) If any Fundamental Issue is proposed, but not approved, by the Board in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes two (and votes 2) consecutive meetings of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If Board, or if there is a dispute or disagreement between the Shareholders as failure to any question which either of them convene two (in its sole judgement2) shall consider is of fundamental importance to the future consecutive meetings of the Joint Venture Company, or its BusinessBoard to discuss a Fundamental Issue due to a lack of Quorum, then at a deadlock shall be deemed to have occurred (a “Deadlock”). During the option continuation of either Shareholder (as applicable)a Deadlock, the Company shall continue to operate in a manner consistent with prior practices and this Agreement until such Deadlock is resolved. If agreement cannot be reached on any other matter submitted to a meeting of the Board, the matter in question shall be considered at deemed not to have been approved and no further action will be taken to resolve the next meeting issue.
(b) Each of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture CompanyMembers may, no resolution is carried in relation by written notice to the matter by reason of an equality of votes for other Members and against any proposal for dealing with itthe Board, or for any other reason, then a Shareholder may give notice in writing declare such Deadlock (a “Deadlock Notice”) to the other referring to , and the matter in dispute and specifying that with respect to which a disagreement exists, the provisions of Clause 17.4 shall apply.
17.4 Following service “Deadlock Matter”). Promptly following the delivery of a Deadlock Notice, either Shareholder may request the matter Deadlock Matter shall be referred (“Escalation”) to the Chief Executive Officers or such appropriate senior executives as of IHI (or other individuals designated by such Shareholder may nominate senior executives of IHI), JGC (or other individuals designated by written notice to the such senior executives of JGC), JBIC (or other individuals designated by such senior executives of JBIC), and CHUBU (or other individuals designed by such senior executives of CHUBU) (collectively, the “Nominated Senior Executives”). The Nominated In an Escalation, the Senior Executives shall meet within 20 days and seek in use good faith efforts to resolve the matter in dispute. Deadlock Matter within 30 Business Days following the delivery of the Deadlock Notice.
(c) If the matter in dispute has not been resolved at Escalation is unsuccessful and the meeting referred to above or following such further period as the Nominated Senior Executives are unable to reach agreement with respect to the Deadlock Matter within the time period set forth in Section 5.07(b), then a Member may agree refer the Deadlock Matter to non-binding mediation (the “Deadlock PeriodMediation”), then either of ) under the Shareholders Mediation Rules (the “OfferorRules of Mediation”) may give notice in writing of the International Chamber of Commerce (the “Offer NoticeICC”) and the Deadlock Matter shall be mediated within the period of 10 30 Business Days following expiry the delivery of a written request for mediation by such Member to each of the other Members and the Board. The seat, or legal place, of the Deadlock Period Mediation shall be Tokyo, Japan, and the proceedings shall be conducted in Japanese. Notwithstanding the foregoing, the Members shall suspend the Deadlock Mediation if a Member pursues a Transfer pursuant to Section 9.03 until the other resolution thereof.
(d) If the “Offeree”Escalation and Deadlock Mediation are unsuccessful, or if three (3) offering or more Deadlock Notices are given during a six (6) consecutive month period, then a Member may refer the Deadlock Matter to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company binding arbitration (the “Deadlock CompanyArbitration”) which are owned by under the Offeror for Rules of Arbitration of the amount per Share ICC (the “Share AmountRules of Arbitration”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or Deadlock Matter shall be finally arbitrated within 30 Business Days following the delivery of a written request for arbitration by such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal Member to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 other Members and the provisions of Clauses 17.4Board. The seat, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6legal place, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period Arbitration shall be Tokyo, Japan, and the proceedings shall be conducted in Japanese. The decision of the arbitrator(s) with respect to the Deadlock Matter shall be final and binding on the Members. Notwithstanding the foregoing, the Members shall suspend the Deadlock Arbitration if a Member pursues a Transfer pursuant to Section 9.03 until the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidationresolution thereof.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Chubu Global Investment Americas Inc.)
Deadlock. 17.1 The Shareholders 15.1 In the event of a Deadlock, each Party shall use all reasonable endeavourswithin ten (10) days of such Deadlock having arisen, in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached cause its nominees on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation Directors to the matter by reason of an equality of votes for prepare and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) circulate to the other referring to Party a memorandum setting out its position on the matter in dispute and specifying its reasons for adopting such position. Each such memorandum shall be considered by a committee (“Mediation Committee”) comprised of respective nominees of NEG and LPL which shall meet together within 30 days of receipt of the memoranda and use its reasonable endeavors to resolve the Deadlock.
15.2 If the members of the Mediation Committee referred reach unanimous agreement, the Mediation Committee shall issue a statement setting out the terms of such agreement and each Party shall exercise the voting rights and other powers of control available to it in relation to the JVC to procure that the provisions terms of Clause 17.4 such agreement are implemented. If the Mediation Committee does not so agree within 60 days of referral of the matter to the Mediation Committee, the top management of NEG and LPL shall applydiscuss the matter in dispute.
17.4 Following service 15.3 If the Mediation Committee does not so agree within 60 days after the referral of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers Mediation Committee, and the top management of NEG and LPL cannot agree within 30 days after the above 60 day period, and if LPL wishes to dispose all shares in the JVC currently held by LPL, LPL shall be entitled to sell those shares to NEG at the Fair Market Value, without the right of set-off, and if NEG wishes to purchase all shares in the JVC currently held by LPL, NEG shall purchase those shares at either: (1) Fair Market Value plus 5% thereof; or such appropriate senior executives as such Shareholder may nominate by written notice to (2) if the other Fair Market Value is lower than the par value, then the Fair Market Value plus 15% thereof (but not higher than the par value plus 5%), (the above rights given to LPL and NEG being hereinafter called “Nominated Senior ExecutivesOption” and the above shares which may be sold or purchased being hereinafter called “Option Shares”). The Nominated Senior Executives Option shall meet be exercised by either party (“Option Party”) serving on a written notice (“Option Notice”) of its wish to exercise the Option to the other party (“Non-Option Party”) within 20 30 days after failure by the top management of NEG and seek in good faith LPL to resolve the matter in disputeDeadlock within the above 30 days period.
15.4 Upon the determination of the Fair Market Value, the Non-Option Party shall within fifteen (15) days (i) agree to the Board of Directors or Shareholder resolution that is the subject of the Deadlock or withdraw the Board of Directors or Shareholder resolution that is the subject of the Deadlock, as the case may be, (and pay for all of the cost of determination of the Fair Market Value) or (ii) agree to the implementation of the Option. If the matter in dispute has not been resolved at Non-Option Party accepts the meeting referred implementation of the Option, the Option Party shall within fifteen (15) days (i) withdraw the Board of Directors or Shareholder resolution that is the subject of the Deadlock or agree to above the Board of Directors or following such further period Shareholder resolution that is the subject of the Deadlock, as the Nominated Senior Executives case may agree be, (and pay for all of the cost of determination of the Fair Market Value) or (ii) proceed with the Option. If the Option Party decides to proceed with the Option, the Option Party shall give to the Non-Option Party written notice (the “Deadlock PeriodOption Sale and Purchase Notice”), then either and upon such notice, the Non-Option Party shall immediately become bound to sell or buy, as the case may be, and the Option Party shall be bound to buy or sell, as the case may be, the Option Shares. The completion of the Shareholders sale and purchase pursuant to an Option Notice shall take place no later than sixty (60) days after the “Offeror”) may give notice date on which the Option Sale and Purchase Notice shall have been delivered; provided that if the purchasing party shall not be in writing (a position to buy the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period shares due to the other (the “Offeree”) offering to sell to the Offeree all of the Shares laws and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6government regulations, the Offeree purchasing party shall have a period of 20 Business Days (right to designate a third party who may buy the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amountsshares.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 18.1 If there is a dispute or disagreement between the Shareholders as to Deadlock in respect of any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture matters, listed in Section 3.1 lit. a), k) to o) and lit q) to u) including such measures at controlled entities of the Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question each Party shall be considered at entitled to send a conciliation notice (the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Conciliation Notice”) to the other referring Party requiring the Parties to negotiate in good faith to attempt to amicably resolve the matter in dispute and specifying that Deadlock. If the provisions Deadlock is not resolved within thirty (30) Business Days of Clause 17.4 shall apply.
17.4 Following service the receipt of a Deadlock the Conciliation Notice, either Shareholder may request the matter then such Deadlock shall jointly be referred to the Chief Executive Officers or respective chairman of the Parties who shall within thirty (30) Business Days, take necessary steps on the best efforts to amicably resolve the Deadlock in a commercially reasonable manner.
18.2 If the Deadlock is not resolved in accordance with the provisions of Section 18.1, the Parties are obliged to refer such appropriate senior executives as such Shareholder may nominate by written notice matter, on which the Deadlock has occurred to the other Advisory Board within ten (10) Business Days from expiry of the “Nominated Senior Executives”)time period specified in Section 18.
1. The Nominated Senior Executives Advisory Board shall meet within 20 days and seek in good faith try to resolve the matter amicably by unanimous decision, however, the Advisory Board is authorised to decide on such matter by final and binding majority resolution. The Advisory Board shall, in dispute. If respect of the matter in dispute has not been resolved at present a decision as soon as practicable immediately after its notification but no later than twenty-one (21) Business Days from the meeting referred to above or following such further period as the Nominated Senior Executives may agree date of its notification (the “Deadlock Advisory Board Mediation Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.618.3 If a dispute is resolved under section 18.1 or 18.2, the Offeree Parties shall have jointly sign a period respective declaration and shall exercise all voting rights and other powers of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which control available to accept or decline the Offer by written notice them to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or procure that such person as the Offeree shall nominate) resolution is fully and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no promptly carried into effect.
17.9 18.4 If either Shareholder (the “Purchaser”) becomes obliged or agrees under Advisory Board has not provided its decision within the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of Advisory Board Mediation Period, such Shares and/or Shareholder Loans Deadlock shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period dropped and the provisions of Clause 11 Parties shall apply mutatis mutandis theretocontinue to carry on the Business in the usual way.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Deadlock. 17.1 The Shareholders 6.3.1 If approval is not obtained under Clause 6.1(b) for a Reserved Matter in Part B of Schedule 2 due to lack of the requisite vote, and in each case after such approval is sought on two (2) successive attempts in accordance with this Agreement (and for this purpose, any adjourned meeting shall use all reasonable endeavourscount as a separate attempt) the matter remains unresolved, PROVIDED THAT such matter if left unresolved will materially and adversely affect the continued operations of the Group (a “Deadlocked Matter”):
(a) the Parties shall:
(i) refer such Deadlocked Matter to MayAir’s Designated Person representing MayAir and the Continuing Shareholders’ Designated Person representing the Continuing Shareholders; and
(ii) request such persons to seek to agree or resolve such matter, whereupon each such Party shall procure such relevant persons to discuss and (acting reasonably) attempt to agree or resolve such matter as soon as reasonably practicable and in any even within 30 calendar days after being requested to do so;
(b) if the Parties are unable to resolve the Deadlocked Matter through the procedure set out in Clause 6.3.1(a), in relation to such case, either MayAir or any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of the nominated DirectorsContinuing Shareholders (“Offering Party”) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (may in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder discretion serve a written notice (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Offer Notice”) to on the other referring Shareholders (each an “Offeree Party”) to purchase all (and not some only) of the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred Offeree Party’s Shares pro-rata to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved each Offeree Party’s existing shareholding at the meeting referred Deadlock Price and on such other terms and conditions to above or following such further period as be agreed upon between the Nominated Senior Executives may agree Offering Party and the Offeree Party (the “Deadlock PeriodOffer”), then either of the Shareholders ; and
(the “Offeror”c) may give notice in writing (the “Offer Notice”) within the each Offeree Party shall at any time during a period of 10 Business Days following expiry 21 calendar days from the date of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Deadlock Resolution Period”) commencing with issue the Business Day following the date of receipt Offering Party a written notice stating its acceptance of the Offer Notice in which to accept or decline the Offer by written notice to the OfferorDeadlock Offer. If the The Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts Party shall be deemed to be accept the Offeror for Deadlock Offer at the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry end of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidationResolution Period.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Shareholders' Agreement
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation 1.6.1. In the event that the Board fails to any matter which requires their unanimous agreement approve a proposed Material Approval Resolution due to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes the deciding vote of either the nominated Directors) in each Company jointly and in furtherance of Trimaran Directors or the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them BSMB Directors (in its sole judgement) shall consider is of fundamental importance to such case, the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable"Vetoing Directors"), the matter directors designated by the Sponsor Investor whose directors voted to approve the Material Approval Resolution (the "Non-Vetoing Directors") shall have the right to determine that discussions concerning such Material Approval Resolution shall continue as set forth in question shall be considered at this Section 1.6. The Sponsor Investors agree that if the next meeting of Non-Vetoing Directors so determine, the Board of Sponsor Investors will use their good faith efforts to resolve and cause their designated directors to resolve the Joint Venture Company.
17.3 disagreement within 90 days after such Material Approval Resolution is rejected. If at the next meeting of the Board of the Joint Venture Company, no resolution such disagreement is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reasonnot resolved within such 90 day period, then beginning on the first day after such 90 day period, the Non-Vetoing Directors shall have the right to deliver a Shareholder may give notice in writing (a “"Deadlock Notice”") to the other referring Vetoing Directors and the Sponsor Investor who has designated the Vetoing Directors.
1.6.2. If, (i) at any time after the third anniversary of the closing of the Merger, the Non-Vetoing Directors shall have delivered to the matter in dispute Vetoing Directors and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of their Sponsor Investor a third or subsequent Deadlock Notice, either Shareholder may request the matter be referred or (ii) prior to the Chief Executive Officers third anniversary of the closing of the Merger, a default or event of default shall have occurred and is continuing or is reasonably expected to occur with respect to an item of material indebtedness and the Vetoing Directors shall have voted against a Material Approval Resolution of any Non-Vetoing Director concerning the remedy of such appropriate senior executives as default or event of default; the Sponsor Investor who designated such Shareholder Non-Vetoing Directors ("Offeror") may nominate by written deliver a notice to the other Sponsor Investor (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith "Offeree") setting forth a price per share at which Offeror proposes to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree purchase all of the Shares and Shareholder Loans relating to of the Joint Venture Company (the “Deadlock Company”) which are owned by Offeree and alternatively, offers to sell all of its Shares to Offeree at the Offeror for the amount same price per Share (the “Share Amount”) and/or amount per $1 outstanding on share. Within 30 days after Offeree's receipt of such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6notice, the Offeree shall have a period of 20 Business Days respond to Offeror, which response either (the “Acceptance Period”x) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell offer contained in Offeror's notice or (y) agrees to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by Offeror on the Offeror same terms and at a the same price equal to the Amounts.
17.6 per Share specified in Offeror's notice. If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeror's notice during such 30 day period, Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be have accepted the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Noticesoffer to purchase contained in Offeror's notice.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (1.6.3. Notwithstanding the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Partyforegoing, the Offer Notice received on the later calendar day shall be rejection of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) a Material Approval Resolution regarding the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser Company or all or substantially all of its assets may specify to the Vendor provided that the date so specified shall not be the cause for sending the notice contemplated by Section 1.6.1 until the fifth anniversary of the closing of the Merger unless the Sponsor Investor who designated the Vetoing Directors shall at the time of the rejection of such Material Approval Resolution hold less than 14 nor more than 21 Business Days after the expiry 10% of the Acceptance Period outstanding Shares of Common Stock.
1.6.4. No holder of Shares, other than the Trimaran Investors and the provisions of Clause 11 BSMB Investors, shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period have any rights pursuant to the terms set out in Clause 17.4 either party may elect Section 2 or 3 with respect to place the Joint Venture Company in liquidationa sale of shares pursuant to Section 1.6.2.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Shareholder Agreement (Southern Bottled Water Co Inc)
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation In the event of the Parties failing to agree any matter the matter may be referred at the request of either Party to the Referee Panel which requires their unanimous agreement will afford to the Parties an opportunity to make representations to it and whose decision shall be final and binding on the Parties. In attempting to resolve such disagreement the members of the Referee Panel will each have equal voting rights. If within two months of a disagreement between the Parties being referred to the Referee Panel pursuant to clause 20.1 the Referee Panel fails to agree a common position and, subject resolution to agreement being reached on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter Party may declare by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing to the other Party that a “Deadlock Situation” has arisen. (a Subject to clause 22) in the event that either Party serves notice (“Deadlock Notice”) in writing pursuant to clause 20.2 (other than where the other referring to Deadlock Notice is served during the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, Pre-Decision Notice Period) above then either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate party at any time thereafter by serving written notice to the other Party (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “OfferorSale Notice”) may give (subject to clause 20.5) require that the Site be disposed of (by way of appendix a - joint venture agreement with hca 38 28 June 2012 your council freehold disposal) and that any other assets of the Joint Venture are disposed of and the provisions of Schedule 2 shall apply to such disposals. In any case where agreement is requisite to the continued operation of the Joint Venture, neither Party is to create or permit the creation or continuation of an Artificial Deadlock. If a Sale Notice is served by the Agency then the Council will be entitled to exercise the right of pre-emption in accordance with Schedule 4 by serving a notice in writing upon the Agency (the “Offer Pre-emption Notice”) within the period of 10 Business 5 Working Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer relevant Sale Notice in which to accept or decline the Offer by written notice to effect of the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or Sale Notice will be suspended until such person time as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amountsprocedures under Schedule 4 have been exhausted.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Joint Venture Agreement
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation (a) If the Managers entitled to vote or consent with respect to any matter which requires their unanimous agreement before the Board fail to agree on the outcome of such matter with sufficient voting power as required by this Agreement, after consideration (or failure to establish a common position and, subject to agreement being reached on such common position, to exercise their votes quorum) at any three (and votes of the nominated Directors3) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting consecutive meetings of the Board (occurring within a period of the Joint Venture Company.
17.3 If at the next meeting not fewer than ninety (90) days) called to consider such matter (a “Deadlock Event”), any Capital Member may submit a written notice of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing such Deadlock Event (a “Deadlock Notice”) to the other referring to Members within five (5) Business Days of the matter in dispute and specifying occurrence of such Deadlock Event requiring that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter Event be referred to mediation, and the Chief Executive Officers or Members shall use their commercially reasonable efforts to resolve the Deadlock Event as follows:
(i) the Capital Members shall agree on a mediator within fifteen (15) Business Days after the date of the Deadlock Notice or, failing agreement, any Capital Member may unilaterally apply for a mediator to be promptly appointed by the American Arbitration Association to conduct the mediation of the Deadlock Event;
(ii) the mediation shall be conducted in the U.S. and in the English language under the American Arbitration Association Mediation Rules;
(iii) each Capital Member shall be represented at the mediation by an individual with authority to settle the Deadlock Event;
(iv) the costs of the mediation, including the fees and expenses of the mediator (but excluding each Member’s own costs, which shall be borne by the Member incurring such appropriate senior executives as such Shareholder costs) shall be borne equally by the Capital Members, unless otherwise agreed to in writing; and
(v) the Capital Members shall use commercially reasonable efforts to resolve the Deadlock Event, in consultation with the mediator and with reference to the mediator’s recommendations, by no later than forty-five (45) days after the date on which the Deadlock Notice is given.
(b) If the Capital Members are unsuccessful at resolving the Deadlock Event through mediation then, within 30 days following the conclusion of the mediation procedure, any member of the Board may nominate by give written notice to the other (Members requesting that the “Nominated Senior Executives”Deadlock Event be referred to arbitration in accordance with the procedure set forth in Section 20(b). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts Any resulting arbitral award shall be deemed to be the Offeror for the purposes of Clause 17.4 binding and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received final on the later calendar day shall be of no effectMembers.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Blue Bird Corp)
Deadlock. 17.1 The Shareholders 8.1 For the purpose of this clause 8, a "Deadlock" shall use all reasonable endeavours, in relation be deemed to occur if:
(A) any of the Reserved Matters or any other matter relating to any matter which requires their unanimous agreement to agree CTH Group Member has been raised at and/or considered by a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board or a general meeting of CTH, in either case where a quorum was present, and no resolution in respect thereof has been passed unanimously by all of the Joint Venture Company.Directors or, as the case may be, Alfa and Cukurova, on at least two successive occasions; or
17.3 If (B) a quorum is not present at three successive duly convened Board or general meetings by reason of the next absence from that general meeting of the same Shareholder or, in the case of a Board meeting, a person nominated as a Director by the same Shareholder.
8.2 In the event of any such Deadlock, the matter shall be referred to a representative of each of Alfa or Cukurova to be designated by each of them respectively within six days of the Joint Venture CompanyDeadlock occurring. During the Reserved Matters Grace Period, no resolution is carried in relation Alfa or Cukurova shall use their best endeavours to resolve the Deadlock. If the Deadlock cannot be resolved prior to the matter later to occur of (i) 30 days following each of Alfa or Cukurova designating a representative in accordance with the foregoing or (ii) the expiry of the Reserved Matters Grace Period, either Alfa or Cukurova may serve notice ("a Warning Notice") that it intends to implement the deadlock procedure contemplated by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall applythis clause 8.
17.4 Following 8.3 If the Deadlock cannot be resolved within a further period of 30 days after service of a Deadlock Warning Notice, either Shareholder Alfa or Cukurova may request within a period of 30 days thereafter serve a notice in writing, substantially in the matter be referred to the Chief Executive Officers or such appropriate senior executives form attached hereto as such Shareholder may nominate by written notice to Schedule 3, on the other of them ("a Deadlock Option Notice") specifying a single price per CTH Share ("the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek Specified Price") at which the Shareholder giving notice ("the Terminating Party") offers (as specified in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other Option Notice) either:
(the “Offeree”A) offering to sell to the Offeree other of them all (but not part) of the CTH Shares collectively held by the Terminating Party and/or members of its Group; or
(B) to purchase all (but not part) of the CTH Shares collectively held by the other of them and/or members of its Group. A Deadlock Option Notice shall be irrevocable.
8.4 The other of them shall, within a period of 30 days after receipt of a Deadlock Option Notice, at its sole option elect in writing either:
(A) to purchase, or to procure the purchase of, all (but not part) of the CTH Shares collectively held by the Terminating Party and/or members of its Group at the Specified Price; or
(B) to require the Terminating Party to purchase, or to procure the purchase of, all (but not some only) of the Shares and collectively held by that other Shareholder Loans relating to or member of its Group at the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”)Specified Price.
17.5 Subject to Clause 17.6, 8.5 If no election is made by that other Shareholder within the Offeree shall have a said period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of 30 days after receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Perioda Deadlock Option Notice, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts it shall be deemed to be have elected to proceed in accordance with requirements of the Offeror for the purposes of Clause 17.4 Deadlock Option Notice and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period bound (subject only to any Regulatory Approvals) to complete the sale and purchase of 25 Business Days from the Business Day following receipt (or deemed receipt) each of the Offer Notices.
17.8 Subject to Clause 17.6relevant CTH Shares at the Specified Price within 30 days after the period specified in clause 8.4 or, if an Offer Notice from one party (any Regulatory Approval has not been obtained by the “First Party”) is received or deemed end of that period, within ten days of the date on which the last Regulatory Approval to be received by obtained is obtained. If any Regulatory Approval has not been obtained or waived within 180 days after such election the other party on a calendar day after the calendar day on which an Offer Deadlock Option Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of lapse and have no further effect.
17.9 8.6 If either Shareholder an election under clause 8.4(A) or clause 8.4(B) is duly made, the Shareholders shall be bound (subject only to any Regulatory Approvals) to complete the “Purchaser”) becomes sale and purchase of each of the relevant CTH Shares at the Specified Price within 30 days after such election or, if any Regulatory Approval has not been obtained by the end of that period, within ten days of the date on which the last Regulatory Approval to be obtained is obtained. If any Regulatory Approval has not been obtained or waived within 180 days after such election the Deadlock Option Notice shall lapse and have no further effect.
8.7 If Alfa shall become obliged or agrees to acquire the CTH Shares held by Cukurova in accordance with the above procedures the amount payable by Alfa shall be the Specified Price less any and all outstanding principal amounts, any accrued but unpaid interest thereon, and any other amounts owing under the terms of Clauses 17.4 to 17.7 to purchase Financing Agreements at the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis theretorelevant time.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Shareholders' Agreement (Turkcell Iletisim Hizmetleri a S)
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation 20.1 In the event of the Parties failing to agree any matter the matter may be referred at the request of either Party to the Referee Panel which requires their unanimous agreement will afford to the Parties an opportunity to make representations to it and whose decision shall be final and binding on the Parties. In attempting to resolve such disagreement the members of the Referee Panel will each have equal voting rights.
20.2 If within two months of a disagreement between the Parties being referred to the Referee Panel pursuant to clause 20.1 the Referee Panel fails to agree a common position and, subject resolution to agreement being reached on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter Party may declare by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing to the other Party that a “Deadlock Situation” has arisen.
20.3 (a Subject to clause 22) in the event that either Party serves notice (“Deadlock Notice”) in writing pursuant to clause 20.2 (other than where the other referring to Deadlock Notice is served during the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, Pre-Decision Notice Period) above then either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate party at any time thereafter by serving written notice to the other Party (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “OfferorSale Notice”) may give (subject to clause 20.5) require that the Site be disposed of (by way of freehold disposal) and that any other assets of the Joint Venture are disposed of and the provisions of Schedule 2 shall apply to such disposals.
20.4 In any case where agreement is requisite to the continued operation of the Joint Venture, neither Party is to create or permit the creation or continuation of an Artificial Deadlock.
20.5 If a Sale Notice is served by the Agency then the Council will be entitled to exercise the right of pre-emption in accordance with Schedule 4 by serving a notice in writing upon the Agency (the “Offer Pre-emption Notice”) within the period of 10 Business 5 Working Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer relevant Sale Notice in which to accept or decline the Offer by written notice to effect of the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or Sale Notice will be suspended until such person time as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amountsprocedures under Schedule 4 have been exhausted.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Joint Venture Agreement
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, following sets forth the parties' agreement with respect to a deadlock situation. In the event that:
(a) either of Jaeg▇▇ ▇▇ Walbro (in relation this subsection called "the First Party") gives written notice to any matter which requires their unanimous agreement to agree a common position and, the other party (in this subsection called "the Second Party") specifying as subject to agreement being reached on such common position, to exercise their votes (and votes this subsection a resolution requiring the affirmative vote of a majority of the nominated Directors) in each Company jointly Board, including at least one Walbro Member and in furtherance one Jaeg▇▇ ▇▇▇ber or the unanimous approval of the common position.
17.2 If there is shareholders, which resolution was previously put to and not passed by a dispute general or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next special meeting of the Board or shareholders, as applicable, because the Second Party or its designee Members present did not vote in favor of the Joint Venture Company.resolution or voted against the resolution, or the Second Party or its designee Members were not present for the vote; and
17.3 If (b) such resolution is again put at the next another such meeting called within 30 days of the Board of original meeting and the Joint Venture CompanyFirst Party or its designee Members present, no resolution is carried in relation to as the matter by reason of an equality of case may be, votes for and the resolution but the Second Party or its designee Members, as the case may be, does not vote or votes against any proposal for dealing with itthe resolution, or the Second Party or its designee Members, as the case may be, are not present for any other reasonthe vote, then a Shareholder may give notice in writing (a “Deadlock Notice”) deadlock situation will be deemed to have arisen. Within seven days of such event arising, Walbro and Jaeg▇▇ ▇▇▇l prepare and circulate to the other referring to a memorandum or other form of statement setting out its position on the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter its reasons for adopting such position. Each such memorandum or statement will be referred to considered by the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith of Jaeg▇▇ ▇▇▇ of Walbro who will respectively use their reasonable efforts to resolve the matter in such dispute. If the matter parties agree upon a resolution of the dispute, they will jointly sign a statement setting forth the terms of such resolution and Walbro and Jaeg▇▇ ▇▇▇l exercise all voting rights and other powers of control available to them in relation to the JV to procure that such resolution is fully and promptly carried into effect. If a resolution of the dispute has is not been resolved at agreed upon within 30 days after delivery of the meeting referred to memorandum or statements mentioned above or following such further longer period as Walbro and Jaeg▇▇ ▇▇▇ agree in writing, the Nominated Senior Executives may agree (the “Deadlock Period”), then either of the Shareholders (the “Offeror”) may give notice JV will automatically terminate as prescribed in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned ARTICLE VII. 6 If a resolution is agreed upon by the Offeror for parties but is not implemented by the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on JV within 60 days after such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offereeagreement, or such person longer period as the Offeree shall nominate, shall purchase from the Offeror all of the Shares Walbro and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice Jaeg▇▇ ▇▇▇ agree in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Partywriting, the Offer Notice received on the later calendar day shall be of no effectJV will automatically terminate as prescribed in ARTICLE VII.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question following events shall be considered at the next meeting as a Deadlock: any Shareholders Meeting fails to adopt a resolution requiring approval by a qualified majority of the Shareholders or any Management Board meeting fails to adopt a resolution due to absence of a quorum or otherwise for at least 3 consecutive occasions; any Shareholder has committed a material breach of the Joint Venture Company.
17.3 If at the next meeting terms of the Board Agreement that has not been cured within 30 days of receipt of notice by any of the Joint Venture Companyother Shareholders; any Shareholder has initiated legal action (civil, no resolution is carried in relation administrative or criminal proceedings) against any of the other Shareholders, their nominees to the matter by reason Management Board or the Company. In the event of an equality of votes for and against a Deadlock, any proposal for dealing Shareholder (with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) respect to the other referring to circumstances described under Section 9.1.2 and 9.1.3, any Shareholder that is not responsible for the matter in dispute and specifying that occurrence of the provisions of Clause 17.4 shall apply.
17.4 Following service of events considered a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written Deadlock) can serve notice to the other (Shareholders to initiate the “Nominated Senior Executives”)Deadlock resolution procedure. The Nominated Senior Executives On declaration of a Deadlock, the Parties agree that the Parties shall meet within 20 5 business days and seek as of such declaration enter in good faith into direct discussions for a period of 5 business days from the beginning of such discussions in order to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”), then either on a mutually satisfactory resolution of the Shareholders (Deadlock. Should such discussions fail to result in a mutually satisfactory resolution of the “Offeror”) Deadlock within a period of 5 business days from the beginning of such discussions, the Party declaring the Deadlock may give notice in writing triggering the Buy-Sell Mechanism. To trigger the Buy-Sell Mechanism a Party (the “Offer Notice”Triggering Party) within the period of 10 Business Days following expiry of the Deadlock Period shall serve to the other Parties (the “Offeree”Receiving Party) offering a written notice (the Trigger Notice) indicating that it triggers the Buy-Sell Mechanism as well as its offered purchase price on a per share basis, which shall be equal to sell EUR [number] per share (the Buy-Sell Price). Within 5 business days of receipt of the Trigger Notice, the Receiving Party shall respond to the Offeree Triggering Party in writing declaring its intention (the Buy-Sell Election) to either: sell all of the Shares and Shareholder Loans relating its shares to the Joint Venture Company (Triggering Party at the “Deadlock Company”) which are owned by Buy-Sell Price; or acquire all shares of the Offeror for Triggering Party at the amount per Share (Buy-Sell Price. and the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (Triggering Party, as well as the “Loan Amount” and together Receiving Party, shall be bound to proceed in accordance with the Share Amount Buy-Sell Election. The sale and purchase of the “Amounts”) specified shares shall be made on a date agreed between the Parties or, in the Offer Notice (absence of such agreement, on the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day 10th business day following the date of the Buy-Sell Election. Should the Receiving Party fail to respond within 5 business days of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance PeriodTrigger Notice, the Offeror shall sell to Triggering Party shall, within a further 5 business days period from the Offeree (or expiry of such person as period of 5 business days, make the Offeree shall nominate) Buy-Sell Election, advising the Receiving Party accordingly in writing and the Offeree, or Receiving Party shall be bound to proceed in accordance with such person Buy-Sell Election as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned if such Buy-Sell Election had been made by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for Receiving Party. For the purposes of Clause 17.4 this Section the Shareholders may cooperate and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Noticesact jointly.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Shareholder Agreement
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours16.1 For the purposes of resolution of Deadlock deemed to have been occurred pursuant to Clauses 13.3 and 15.4 of this Agreement, in relation to any matter which requires their unanimous agreement to agree a common position andor the Investor may, subject to agreement being reached on such common position, to exercise their votes within seven (and votes 7) business days of the nominated Directors) in each Company jointly and in furtherance occurrence of the common positionevent giving rise to the „Deadlock‟, issue a notice (“Deadlock Notification”) addressed to the other Party stating that the Deadlock has occurred and identifying the subject matter of the Deadlock. If no such Deadlock Notification is issued by a Party, then status quo shall be maintained on the subject.
17.2 If there is 16.2 In case the Parties are not able to resolve the Deadlock within a dispute or disagreement between period of 30 (thirty) days from the Shareholders as to any question which either date of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable)Deadlock Notification, the matter in question shall be considered at referred to a nominee identified by and a nominee identified by the next meeting Investor on behalf of the Board Investor with a view to resolve the Deadlock matter within a period of thirty days from the expiry of the Joint Venture Company.
17.3 first thirty days referred to in this Clause (“First Deadlock Resolution Period”). If at a “Deadlock” is not resolved within the next meeting of the Board of the Joint Venture CompanyFirst Deadlock Resolution Period also, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate second nominee identified by written notice and the second nominee identified by ▇▇▇▇▇▇▇▇ on behalf of the Investor with a view to resolve the other Deadlock matter to resolve the Deadlock within a period of fifteen (the 15) business days from being referred to it (“Nominated Senior ExecutivesSecond Deadlock Resolution Period”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve In the event that the matter in dispute. If the matter in dispute has is still not been resolved at the meeting referred to above or following such further period as end of the Nominated Senior Executives may agree (the “Second Deadlock Period”)Resolution Period provided under Clause 16.2, then either of the Shareholders (Parties agree that Investor, being the “Offeror”) may give notice minority shareholder shall have the right to require to buy Investor Shares in writing (the “Offer Notice”) within Company if so desired by the period of 10 Business Days following expiry of Investor. The Investor shall have the Deadlock Period right to the other (the “Offeree”) offering to sell to the Offeree offer all and not less than all of the its Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal which shall be the Fair Value or a mutually agreed price, and shall be obliged to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice purchase such Shares within the Acceptance Period the Offeree shall sell to the Offeror 3 (or such person as the Offeror shall nominatethree) and the Offeror (or such person as the Offeror shall nominate) shall purchase months from the Offeree all Shares notification of such offer, either by themselves or through any designated person /entity. The fair market value shall be as determined by two independent valuers (appointed each by and Shareholder Loans held Investor) using the same valuation methodology. In the event of variation in the value determined by the Offeree at two independent valuers by more than 5%, the Fair Market Value shall be as determined by a price equal to the Amounts.
17.7 If each third independent valuer appointed from any of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party reputed accounting firms whose Offer Notice specifies the higher Amounts decision shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Noticesfinal.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Investment Agreement
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours, in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of a) In the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service event of a Deadlock NoticeEvent, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives CBL and BCP shall meet within 20 days and seek negotiate in good faith to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further for a thirty (30) day period as the Nominated Senior Executives may agree (the “Deadlock Negotiation Period”)) to resolve such Deadlock Event.
(b) In the event that CBL and BCP are unable to amicably settle the Deadlock Event during the Deadlock Negotiation Period, then either each of CBL and BCP shall have the Shareholders right to provide a written notice (the “Offeror”) may give Buy-Sell Notice,” the party providing such notice in writing (the “Offer Notice”) within Offering Participant” and the period of 10 Business Days following expiry of the Deadlock Period to the other (party receiving such notice the “OffereeElecting Participant”) offering to sell to to, at the Offeree election of the Electing Participant, purchase all of the Shares and Shareholder Loans relating to Electing Participant’s Participation Interests or sell all of the Joint Venture Company (Offering Participant’s Participation Interests at the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) price specified in the Offer Notice (the “Offer”)Buy-Sell Notice.
17.5 Subject to Clause 17.6, the Offeree (c) The Electing Participant shall have a period of 20 ninety (90) Business Days (the “Acceptance Election Period”) commencing with to elect to sell its Participation Interests or buy the Offering Participant’s Participation Interests at the price specified in the Buy-Sell Notice and, in the event that the Electing Participant does not provide written notice of its election within such ninety (90) Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar dayperiod, then the party whose Offer Notice specifies the higher Amounts Electing Participant shall be deemed to be have elected to sell its Participation Interests at the Offeror for Purchase Price set forth in the purposes Buy-Sell Notice.
(d) The Participant selling its Participation Interests pursuant to this Section 3.6 shall assign its Participation Interests to the purchasing Participant free and clear of Clause 17.4 all liens and encumbrances whatsoever by entering into a participation interest purchase agreement and perform any and all actions required under applicable law in order to assign its Participation Interests (including, but not limited to, notary certification of the provisions participation interest purchase agreement and notary certification of Clauses 17.4, 17.5 the application). The closing of the purchase and 17.6 sale of the Participation Interests pursuant to this Section 3.6 shall apply save that occur within ten (10) Business Day after the Acceptance Period termination of the Election Period. The purchase price shall be a period paid by wire transfer of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Noticesimmediately available funds.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Deadlock. 17.1 The Shareholders shall use all reasonable endeavours16.1 For the purposes of resolution of Deadlock deemed to have been occurred pursuant to Clauses 13.3 and 15.4 of this Agreement, in relation to any matter which requires their unanimous agreement to agree a common position andor the Investor may, subject to agreement being reached on such common position, to exercise their votes within seven (and votes 7) business days of the nominated Directors) in each Company jointly and in furtherance occurrence of the common positionevent giving rise to the „Deadlock‟, issue a notice (“Deadlock Notification”) addressed to the other Party stating that the Deadlock has occurred and identifying the subject matter of the Deadlock. If no such Deadlock Notification is issued by a Party, then status quo shall be maintained on the subject.
17.2 If there is 16.2 In case the Parties are not able to resolve the Deadlock within a dispute or disagreement between period of 30 (thirty) days from the Shareholders as to any question which either date of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable)Deadlock Notification, the matter in question shall be considered at referred to a nominee identified by and a nominee identified by the next meeting Investor on behalf of the Board Investor with a view to resolve the Deadlock matter within a period of thirty days from the expiry of the Joint Venture Company.
17.3 first thirty days referred to in this Clause (“First Deadlock Resolution Period”). If at a “Deadlock” is not resolved within the next meeting of the Board of the Joint Venture CompanyFirst Deadlock Resolution Period also, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate second nominee identified by written notice and the second nominee identified by Investor on behalf of the Investor with a view to resolve the other Deadlock matter to resolve the Deadlock within a period of fifteen (the 15) business days from being referred to it (“Nominated Senior ExecutivesSecond Deadlock Resolution Period”). The Nominated Senior Executives shall meet within 20 days and seek in good faith to resolve In the event that the matter in dispute. If the matter in dispute has is still not been resolved at the meeting referred to above or following such further period as end of the Nominated Senior Executives may agree (the “Second Deadlock Period”)Resolution Period provided under Clause 16.2, then either of the Shareholders (Parties agree that Investor, being the “Offeror”) may give notice minority shareholder shall have the right to require to buy Investor Shares in writing (the “Offer Notice”) within Company if so desired by the period of 10 Business Days following expiry of Investor. The Investor shall have the Deadlock Period right to the other (the “Offeree”) offering to sell to the Offeree offer all and not less than all of the its Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal which shall be the Fair Value or a mutually agreed price, and shall be obliged to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice purchase such Shares within the Acceptance Period the Offeree shall sell to the Offeror 3 (or such person as the Offeror shall nominatethree) and the Offeror (or such person as the Offeror shall nominate) shall purchase months from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers an Offer Notice in the terms set out in Clause 17.4 and each notification of such notices is received offer, either by themselves or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts through any designated person /entity. The fair market value shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt as determined by two independent valuers (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one party (the “First Party”) is received or deemed to be received by the other party on a calendar day after the calendar day on which an Offer Notice from the other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effect.
17.9 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the Shares and/or Shareholder Loans which are owned by the other (the “Vendor”) the sale of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as the Purchaser may specify to the Vendor provided that the date so specified shall not be less than 14 nor more than 21 Business Days after the expiry of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis thereto.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.appointed each by
Appears in 1 contract
Sources: Investment Agreement
Deadlock. 17.1 16.1 Where the Shareholders fail to reach an agreement in relation to a Shareholder’s Reserved Matter or the Board is unable to reach an agreement in relation to a Board’s Reserved Matter or there is no quorum for a Shareholders meeting or a Board meeting or there is equal vote for a Shareholders’ resolution or Board resolution (each a Deadlock Event), such matter shall be presented to the Shareholders or the Board (as the case may be) for vote again within ten (10) Business Days. Following a Deadlock Event, a written notice of at least ten (10) Business Days must be given to each Shareholder or Director (as the case may be) specifying the date, time and place of the meeting and the business to be transacted. Where a Deadlock Event has arisen at three (3) consecutive Shareholders meetings or Board meetings (including adjourned meetings) (as the case may be) duly convened, a deadlock is deemed to have arisen for the purpose of this Clause 16, and such matter shall be referred by notice (the Deadlock Notice) of any one of the Shareholders or Directors to the Nominated Representative of each of the Shareholders within fourteen (14) days of occurrence of the last Deadlock Event. The Notice shall:
(a) state that a deadlock has occurred; and
(b) identify the matter giving rise to the deadlock.
16.2 The Nominated Representatives shall prepare discussion materials (if any) and send them to other Nominated Representatives within seven (7) days of receiving the Deadlock Notice. The Nominated Representatives shall discuss within thirty (30) days of receiving the Deadlock Notice and use all commercially reasonable endeavours to resolve the deadlock.
16.3 If the Nominated Representatives are unable to resolve the deadlock during the period as set out in Clause 16.2, then the Nominated Representatives shall convene a discussion with and among the Shareholders aiming to resolve the deadlock within sixty (60) days thereof. The Shareholders shall procure the Nominated Representatives to act in good faith and use all reasonable endeavours, in relation to any matter which requires their unanimous agreement to agree a common position and, subject to agreement being reached on such common position, to exercise their votes (and votes of the nominated Directors) in each Company jointly and in furtherance of the common position.
17.2 If there is a dispute or disagreement between the Shareholders as to any question which either of them (in its sole judgement) shall consider is of fundamental importance to the future of the Joint Venture Company, or its Business, then at the option of either Shareholder (as applicable), the matter in question shall be considered at the next meeting of the Board of the Joint Venture Company.
17.3 If at the next meeting of the Board of the Joint Venture Company, no resolution is carried in relation to the matter by reason of an equality of votes for and against any proposal for dealing with it, or for any other reason, then a Shareholder may give notice in writing (a “Deadlock Notice”) to the other referring to the matter in dispute and specifying that the provisions of Clause 17.4 shall apply.
17.4 Following service of a Deadlock Notice, either Shareholder may request the matter be referred to the Chief Executive Officers or such appropriate senior executives as such Shareholder may nominate by written notice to the other (the “Nominated Senior Executives”). The Nominated Senior Executives shall meet within 20 days and seek in good faith endeavours to resolve the matter in dispute. If the matter in dispute has not been resolved at the meeting referred to above or following such further period as the Nominated Senior Executives may agree (the “Deadlock Period”)expeditiously including, then either of if the Shareholders (the “Offeror”) may give notice in writing (the “Offer Notice”) within the period of 10 Business Days following expiry of the Deadlock Period to the other (the “Offeree”) offering to sell to the Offeree all of the Shares and Shareholder Loans relating to the Joint Venture Company (the “Deadlock Company”) which are owned by the Offeror for the amount per Share (the “Share Amount”) and/or amount per $1 outstanding on such Shareholder Loans (the “Loan Amount” and together with the Share Amount the “Amounts”) specified in the Offer Notice (the “Offer”).
17.5 Subject to Clause 17.6consider appropriate, the Offeree shall have a period of 20 Business Days (the “Acceptance Period”) commencing with the Business Day following the date of receipt of the Offer Notice in which to accept or decline the Offer by written notice to the Offeror. If the Offeree accepts the Offer within the Acceptance Period, the Offeror shall sell to the Offeree (or such person as the Offeree shall nominate) and the Offeree, or such person as the Offeree shall nominate, shall purchase from the Offeror all of the Shares and Shareholder Loans owned by the Offeror at a price equal to the Amounts.
17.6 If the Offeree declines the Offer or fails to respond to the Offer Notice within the Acceptance Period the Offeree shall sell to the Offeror (or such person as the Offeror shall nominate) and the Offeror (or such person as the Offeror shall nominate) shall purchase from the Offeree all Shares and Shareholder Loans held by the Offeree at a price equal to the Amounts.
17.7 If each of the Shareholders delivers appointing an Offer Notice in the terms set out in Clause 17.4 and each of such notices is received or deemed to be received upon the same calendar day, then the party whose Offer Notice specifies the higher Amounts shall be deemed to be the Offeror for the purposes of Clause 17.4 and the provisions of Clauses 17.4, 17.5 and 17.6 shall apply save that the Acceptance Period shall be a period of 25 Business Days from the Business Day following receipt (or deemed receipt) of the Offer Notices.
17.8 Subject to Clause 17.6, if an Offer Notice from one impartial third party (the “First PartyMediator”), to assist the Shareholders to reach a mutually satisfactory resolution of the deadlock during the said sixty (60) is received or deemed to days’ period. The Mediator shall be received chosen upon mutual consent of the Shareholders, and the costs and expenses for appointment of such Mediator shall be shared equally by the other party on a calendar day after Shareholders.
16.4 In the calendar day on which an Offer Notice event that no agreement is reached within ninety (90) days from the date of the Deadlock Notice and the deadlock remains, notwithstanding the procedures above, any Shareholder may apply to sell and transfer any Shares or Shareholder Loans to any or all other party is received by the First Party, the Offer Notice received on the later calendar day shall be of no effectShareholders in accordance with Clause 13.2.
17.9 16.5 If either Shareholder (the “Purchaser”) becomes obliged or agrees under the terms of Clauses 17.4 to 17.7 to purchase the there are any Shares and/or Shareholder Loans which are owned not purchased by the other any Shareholders in accordance with Clause 13.2,
(the “Vendor”a) the sale Board may dispose of such Shares and/or Shareholder Loans shall be completed on such date (being a Business Day) as them in the Purchaser may specify manner it thinks most beneficial to the Vendor Company and may offer them to any person or persons the Board is prepared to register as a Shareholder, provided that the date so specified shall consideration for and terms of the sale must not be less more favourable than 14 nor more than 21 Business Days after those offered to the expiry existing Shareholders under Clause 13.2;
(b) if within 30 days thereafter, there remains any Shares which have not been purchased by any party, any Shareholder has an option but not obligation to serve notice in writing on the other Shareholder(s) (a Winding-Up Notice) requiring that the Company be wound up. The Shareholders shall procure that the Company be wound up within ninety (90) days from the date of the Acceptance Period and the provisions of Clause 11 shall apply mutatis mutandis theretoWinding-Up Notice.
17.10 If neither Shareholder issues an Offer Notice within the period of 10 Business Days following expiry of the Deadlock Period pursuant to the terms set out in Clause 17.4 either party may elect to place the Joint Venture Company in liquidation.
17.11 Any contemplated change of ownership resulting from this Clause 17 shall always be subject to the provisions of the Time Charters.
Appears in 1 contract
Sources: Joint Venture Agreement