Put Option. The MSO shall have the option (the "Put Option") to require the PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to: (a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic Office, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and (b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇▇▇▇▇▇▇ and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and (c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic Office. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and (b) of this Section 2 (collectively, the "Put Price").
Appears in 1 contract
Sources: Stock Put/Call Option and Successor Designation Agreement (Omega Orthodontics Inc)
Put Option. The MSO shall have 2.1 In consideration for the entry into this Agreement, Aleph Cayman grants to A15 an option (the "“Put Option"”) to require the PC, upon termination Aleph Cayman to purchase all (and not some only) of the Management Services Agreement remaining shares in Connect Ads held by A15 (the MSO under Section 10.2 thereof or upon expiration “Put Option Shares”) on the terms and subject to the provisions of this Schedule 7 (A15 Put Option).
2.2 Subject to paragraph 2.3 of this Schedule 7 (A15 Put Option), A15 may exercise the Put Option, once only and in respect of all and not some only of the Term Put Option Shares, by serving a Put Option Exercise Notice in accordance with paragraph 2.9 of this Schedule 7 (A15 Put Option).
2.3 The Put Option may only be exercised if a Put Option Trigger Event occurs.
2.4 If, at any time after the Signature Date, a Put Option Trigger Event occurs, Aleph Cayman shall within ten (10) Business Days of the Management Services Agreementdate of such Put Option Trigger Event, todeliver to A15 a notice in writing (the “Draft Put Option Statement”) specifying:
(a) Purchase from the MSO at book value all reasonable details of the leasehold improvementsPut Option Trigger Event, fixtures, furniture, furnishings including:
(i) in the case of a Qualifying IPO:
(A) the Qualifying Exchange;
(B) the number of primary shares in Aleph Cayman to be issued and equipment comprising or located at sold by Aleph Cayman;
(C) the Orthodontic Office, including all replacements and additions thereto made number of secondary shares in Aleph Cayman to be sold by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared each shareholder in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance SheetAleph Cayman; and
(bD) Purchase, the offering price per share;
(ii) in the case of an Aleph Cayman Change of Control:
(A) the identity of the third party purchaser;
(B) the number of shares in Aleph Cayman to be sold by obtaining an assignment from Aleph; and
(C) the MSO, at book valuepurchase price per share in Aleph Cayman (including any deferred consideration or earn-outs);
(iii) in the case of a Change in CEO, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any date on which C▇▇▇▇▇▇▇▇ and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and
(c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic Office. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ceased to be CEO of Aleph Cayman
(b) the date specified Put Option Connect Ads EBITDA;
(c) the Put Option Connect Ads Cash;
(d) the Put Option Connect Ads Indebtedness;
(e) the Put Option Connect Ads Net Debt;
(f) the Put Option IMS EBITDA;
(g) the Put Option IMS Cash;
(h) the Put Option IMS Indebtedness;
(i) the Put Option IMS Net Debt;
(j) the Put Option Valuation Multiple;
(k) the Put Option Consideration Shares Percentage; and
(l) the number of Put Option Consideration Shares, and attaching complete and accurate copies of:
(a) in the case of a Qualifying IPO, the admission document and/or prospectus;
(b) in the case of an Aleph Cayman Change of Control, the definitive transaction documents;
(c) the Put Option Connect Ads Accounts; and
(d) the Put Option IMS Accounts. The Parties acknowledge and agree that the Put Option Connect Ads EBITDA, the Put Option Connect Ads Cash, the Put Option Connect Ads Indebtedness, the Put Option Connect Ads Net Debt, the Put Option IMS EBITDA, the Put Option IMS Cash, the Put Option IMS Indebtedness and the Put Option IMS Net Debt shall exclude any inter-company transactions between the IMS Group and the Connect Ads Group other than any invoice rendered by an IMS Group Company to a Connect Ads Group Company, to recharge the cost of any media purchased by an IMS Group Company, in respect of a service rendered by such notice Connect Ads Group Company to a commercial partner in any Connect Ads Territory, as supported by an arms' length partner agreement.
2.5 A15 shall, within twenty (20) Business Days of receipt from Aleph Cayman of a Draft Put Option Statement, either:
(a) confirm to Aleph Cayman in writing its acceptance of the date Draft Put Option Statement; or
(b) notify Aleph Cayman in writing of its non-acceptance of the Draft Put Option Statement (which, for the closing avoidance of the Put Option. Any exercise doubt, may include its non-acceptance of the Put Option by Connect Ads Accounts and/or the MSO shall be made by an aggregate payment Put Option IMS Accounts) (a “Put Option Non-Acceptance Notice”), together with written details of the amounts computed under Clauses (a) each matter disputed and (bof its proposed modifications.
2.6 If A15 serves a Put Option Non-Acceptance Notice pursuant to paragraph 2.5(b) of this Section 2 Schedule 7 (collectivelyA15 Put Option), Aleph Cayman and A15 shall use all reasonable endeavours to meet and discuss the objections of A15 and to agree the adjustments (if any) required to be made to the Draft Put Option Statement within fifteen (15) Business Days after Aleph Cayman receives the Put Option Non-Acceptance Notice.
2.7 If A15 confirms its acceptance of the Draft Put Option Statement (either as originally submitted to it or with such modifications as the Parties agree) or fails to notify Aleph Cayman of its non-acceptance in accordance with paragraph 2.5(b) of this Schedule 7 (A15 Put Option), the "Draft Put Price")Option Statement (incorporating any modifications agreed in writing) shall constitute the Put Option Statement for the purposes of this Agreement, which shall be final and binding on the Parties in the absence of manifest error or fraud.
2.8 If Aleph Cayman and A15 are unable to agree the Draft Put Option Statement within fifteen (15) Business Days of Aleph Cayman’s receipt of A15’s Put Option Non-Acceptance Notice, the disputed matters may be referred for determination by an Expert appointed in accordance with paragraph 3 below.
Appears in 1 contract
Sources: Deed of Adherence, Amendment and Restatement (Aleph Group, Inc)
Put Option. The MSO shall have the option (the "Put Option") to require the PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase Subject to Section 3.1 hereof, at any time on and from the MSO at book value all earlier of (1) the leasehold improvements, fixtures, furniture, furnishings and equipment comprising date falling 10 months from the date hereof (or located at any later date as may be agreed in writing between the Orthodontic OfficeParties from time to time, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared electronic mail in accordance with GAAP clause 5.4 below or otherwise) and (2) the "Balance Sheet") to reflect operations occurrence of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇a ▇▇▇▇▇▇ and other intangible assets set forth on Insolvency Event, until the Balance Sheetdate falling 36 months from the Original Put Option Date (the “Option Period”), reflecting amortization or depreciation of the restrictive covenantsHolder shall have the right (such right, and any goodwill and other intangible assets; and
(c) Assume all debt and all contractsthe “Option”), payables and leases which are obligations of but not the MSO and which relate solely obligation, to exercise an option to sell to the performance Purchaser the Put Exercise Percentage (as set out in the relevant Exercise Notice) of its obligations under all the Management Services Agreement or the properties subleased rights and interests in respect of the Orthodontic Office. If Exchange Note (which Option may be exercised any number of times, each time by an Exercise Notice referring to a separate Put Exercise Percentage in accordance herewith) which, in each case, shall include the MSO desires relevant Put Exercise Percentage of each of the following:
(i) the Exchange Note provided to exercise its the Osprey Parties and any rights, interests, benefits and entitlements relating thereto including any related subscription rights and, in each case, any Related Rights relating to them which have either been obtained, paid or accruing on and from the Original Put OptionOption Date;
(ii) any Conversion Securities (if any) and any rights and, interests, benefits and entitlements relating thereto (including any Related Rights in connection therewith) obtained or accruing on and from the Original Put Option Date, and
(iii) any other rights, interests, benefits or entitlements provided to any Osprey Parties under the Exchange Agreement relating thereto in each case as adjusted to take into account any stock split, reverse stock split, stock dividend, reorganisation or similar event affecting the number of Exchange Note, Conversion Securities or conversion rights, (the above, the MSO shall give written notice of such election to “Option Interests” and the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ Put Exercise Percentage thereof being, the date specified “Exercised Option Interests”), in such notice as the date each case, for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and Exercise Price.
(b) of this Section 2 (collectively, The Put Exercise Percentage set out in each Exercise Notice shall not exceed the "Put Price")Exercise Percentage Cap.
Appears in 1 contract
Put Option. The MSO (a) In the event, and ONLY in the event, that a Triggering Event shall have occurred and is continuing, during the option Put Option Period, Nixon and/or his Permitted Transfere▇▇ ▇▇all have the right and option, but not the obligation (the "Put Option") ), to require cause the PCPurchaser and/or Blakey to redeem and repurchase, in ▇▇▇▇▇ or in part, all shares of Purchaser Common Stock owned of record by Nixon and/or his Permitted Transfere▇▇, ▇ll upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings terms and equipment comprising or located at the Orthodontic Office, including all replacements and additions thereto made by the MSO pursuant subject to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, conditions hereinafter set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; andforth.
(b) Purchase, The Put Option may be exercised by obtaining an assignment from Nixon and/or his Permitted Transfere▇(▇) only in the MSO, at book valueevent and to the extent that a Triggering Event shall have occurred and is continuing. Subject to the foregoing, the right Put Option may be exercised by written notice from Nixon and/or his Permitted Transfere▇(▇) to receive payments for breach of the restrictive covenants provided for in Section 3.7 of Purchaser and Blakey (the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder"Put Notice"), and any which Put ▇▇▇▇▇e shall set forth (i) the name of the Person(s) exercising such Put Option, and (ii) the number of shares of Purchaser Common Stock which Nixon and/or his Permitted Transfere▇ ▇▇▇ ▇hes the Purchaser and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, Blakey to redeem and any goodwill and other intangible assets; andrepurchase.
(c) Assume all debt and all contractsThe Purchaser shall, payables and leases which are obligations not later than thirty (30) days from receipt of the MSO Put Notice, advise Nixon or his Permitted Transferee(s) ▇▇ ▇riting (the "Put Response Letter") as to (i) the date of the proposed closing of the redemption and which relate solely repurchase of the aggregate number of shares of the Purchaser Common Stock subject to the performance Put Option and included in the Put Notice (the "Put Securities"), which date (the "Put Effective Date") shall be not later than ten (10) days from the date the EBITDA Statement is mutually agreed to between the parties; and (ii) the method of its obligations under the Management Services Agreement or the properties subleased in respect payment of the Orthodontic OfficePut Option Price for such Put Securities on the Put Effective Date, and if such payment shall not be in cash by wire transfer of immediately available funds, appropriately detailed terms of payment and reasons for the deferral. In addition, the Purchaser will on or before the date of delivery of the Put Response Letter, instruct the independent accountants engaged by the Purchaser to (i) audit its financial statements, to conduct a special review and calculation of the EBITDA of the Purchaser and its consolidated Subsidiaries for the relevant Fiscal Year, and (ii) prepare and deliver the EBITDA Statement to the Purchaser and Nixon or his Permitted Transferee(s) ▇▇▇ later than 45 days from the date of the Put Response Letter.
(d) Nixon and/or his Permitted Transfere▇(▇) shall have the right to review fully all work papers relating to the EBITDA Statement in order to confirm that such EBITDA Statement has been determined as provided herein. Nixon and/or his Permitted Transfere▇(▇) shall complete their review of such EBITDA Statement within thirty (30) days after such determination and related documentation have been made available for its review. If Nixon and/or his Permitted Transfere▇(▇) believe that any adjustment should be made to such EBITDA Statement in order for it be prepared in accordance with the MSO desires to exercise its Put Optionrequirements of this Agreement, the MSO Nixon and/or his Permitted Transfere▇(▇) shall give the Purchaser written notice of such election adjustments. If the Purchaser agrees with the adjustments proposed by Nixon and/or his Permitted Transfere▇(▇), the adjustments shall be made to such EBITDA Statement. If there are proposed adjustments which are disputed by the Purchaser, then the Purchaser and Nixon and/or his Permitted Transfere▇(▇) shall negotiate in good faith to resolve all disputed adjustments. If, after a period of ten (10) days following the date on which Nixon and/or his Permitted Transfere▇(▇) gives the Purchaser written notice of any proposed adjustments, any such adjustments still remain disputed, Nixon and/or his Permitted Transferee(s) and the Purchaser will jointly engage a nationally recognized independent accounting firm (other than the accounting firm used by the Purchaser to prepare the EBITDA Statement) (the "Independent Accountant") to resolve any remaining disputed adjustments in accordance with this Agreement, and the decision of the Independent Accountant shall be final, binding and nonappealable on the parties hereto and shall be deemed a final arbitration award that is enforceable pursuant to the PC terms of the Federal Arbitration Act. All fees and Dr. Azani at least twenty expenses of the Independent Accountant incurred in connection with such resolution shall be split equally between the parties.
(20e) calendar days The per share price which the Purchaser shall be required to pay to Nixon or any of his Permitted Transf▇▇▇▇▇ ▇▇ upon the date specified in such notice exercise of the Put Option during the Put Option Period (the "Put Option Price") shall be equal to the GREATER of (i) $1.96 per share, (ii) 100% of the Formula Value divided by the issued and outstanding shares of Purchaser Common Stock, and (iii) the arithmetic average of the closing price of a share of the Purchaser Common Stock, as then traded on the date National Association of Securities Dealers, Inc. OTC-Bulletin Board, The Nasdaq Stock Exchange, the American Stock Exchange or any other national securities exchange, for the twenty (20) consecutive trading days ending on the last business day immediately preceding the closing of the Put OptionEffective Date (if publicly traded at such time).
(f) On each occasion that a Put Notice shall be given, the Purchaser will undertake to pay the Put Option Price for the Put Securities in cash in immediately available funds on the Put Effective Date. Any exercise If, due to restrictions under applicable law or any credit agreement binding upon the Purchaser, the Purchaser shall be unable to pay all of the Put Option by the MSO shall be Price in cash, or if such payment, if made by an aggregate payment Purchaser, would have a substantial material adverse effect on the liquidity and capital resources of the amounts computed under Clauses Purchaser, then and in either such events, Blakey shall pay such unpaid portion ▇▇ ▇▇e Put Option Price in cash.
(ag) Notwithstanding anything to the contrary, express or implied, contained in this Agreement, the Put Option set forth in this Section 3.1 shall (i) terminate and be of no further force or effect after December 31, 2004, unless previously exercised in accordance with this Section 3.1, and (bii) may not be assigned or otherwise Transferred by Nixon, except to a Permitted Transfe▇▇▇. Upon any such permitted assignment, such Permitted Transferee shall execute and deliver to the Purchaser such joinder or related agreement and undertaking to be bound by and subject to all of the terms and conditions of this Section 2 (collectively, the "Put Price")Agreement.
Appears in 1 contract
Put Option. The MSO shall have ABK hereby grants to each of the shareholders of the Company an exclusive option (the "“Put Option"”) to require ABK (or, if ABK is owned by a parent corporation or if there exists an affiliated corporation of ABK or its parent corporation that has control over, or common control with, ABK or its parent corporation, in each case, the PC, upon termination “ABK Parent”) to purchase all of the Management Services Agreement by Put Option Shares. The Put Option may be exercised (upon the MSO under Section 10.2 thereof or upon expiration sole election of the Term of the Management Services Agreement, toPowdermet) as follows:
(a) Purchase from the MSO at book value all Put Option may only be exercised for a period of 12 months after the exercise of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising 75% Option or located at upon a Change in Control of either ABK (or the Orthodontic Office, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; andABK Parent);
(b) Purchase, The purchase price to be paid by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇▇▇▇▇▇▇ and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and
ABK (c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic Office. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the PC and Dr. Azani at least twenty (20ABK Parent) calendar days ▇▇▇▇▇ ▇▇ the date specified in such notice as the date for the closing of Put Option Shares upon the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment a total of $14,600,000, which shall be payable, at the election of Powdermet (on behalf of all other shareholders of the amounts computed under Clauses Company), as follows: (ai) all in shares of common stock of ABK (or the ABK Parent) based on the average closing price of the shares of ABK (or the ABK Parent) for the ten days previous to the date of the notice given pursuant to section 10.3(c) below; or (ii) by mutual consent, $4,000,000 in cash, by wire transfer of immediately available funds to an account designated by Powdermet, and $10,600,000 in shares of common stock of ABK (bor the ABK Parent) based on the average closing price of this Section 2 the shares of ABK (collectivelyor the ABK Parent) for the ten days previous to the date of the notice given pursuant to section 10.3(c) below; provided, however, if ABK (or the "ABK Parent) is not publicly-traded or listed companies, then the valuation of ABK (or the ABK Parent) for purposes of exercising the Put Price").Option shall be conducted by a valuation expert selected by Powdermet and ABK;
Appears in 1 contract
Sources: Investment Agreement (Abakan, Inc)
Put Option. The MSO shall have the option (the "Put Option") to require the PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase Subject to Section 3.1 hereof, at any time on and from the MSO at book value all earlier of (1) the leasehold improvements, fixtures, furniture, furnishings and equipment comprising date falling 10 months from the date hereof (or located at any later date as may be agreed in writing between the Orthodontic OfficeParties from time to time, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared electronic mail in accordance with GAAP clause 5.4 below or otherwise) and (2) the "Balance Sheet") to reflect operations occurrence of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇a ▇▇▇▇▇▇ and other intangible assets set forth on Insolvency Event, until the Balance Sheetdate falling 36 months from the date hereof (the “Option Period”), reflecting amortization or depreciation of the restrictive covenantsHolder shall have the right (such right, and any goodwill and other intangible assets; and
(c) Assume all debt and all contractsthe “Option”), payables and leases which are obligations of but not the MSO and which relate solely obligation, to exercise an option to sell to the performance Purchaser the Put Exercise Percentage (as set out in the relevant Exercise Notice) of its obligations under all the Management Services Agreement or the properties subleased rights and interests in respect of the Orthodontic Office. If Investment (which Option may be exercised any number of times, each time by an Exercise Notice referring to a separate Put Exercise Percentage in accordance herewith) which, in each case, shall include the MSO desires relevant Put Exercise Percentage of each of the following:
(i) ownership of all Securities provided to exercise its Put Optionthe Osprey Parties in connection with the Investments and any rights, interests, benefits and entitlements relating thereto including any related subscription rights and, in each case, any Related Rights relating to them which have either been obtained, paid or accruing on and from the date hereof;
(ii) any Conversion Securities (if any) and any rights and, interests, benefits and entitlements relating thereto (including any Related Rights in connection therewith) obtained or accruing on and from the date hereof, and
(iii) any other rights, interests, benefits or entitlements provided to any Osprey Parties under the Transaction Documents relating thereto in each case as adjusted to take into account any stock split, reverse stock split, stock dividend, reorganisation or similar event affecting the number of Securities, Conversion Securities or conversion rights, (the above, the MSO shall give written notice of such election to “Option Interests” and the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ Put Exercise Percentage thereof being, the date specified “Exercised Option Interests”), in such notice as the date each case, for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and Exercise Price.
(b) of this Section 2 (collectively, The Put Exercise Percentage set out in each Exercise Notice shall not exceed the "Put Price").Exercise Percentage Cap
Appears in 1 contract
Put Option. The MSO shall 12.1 For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Top Tone Parties and Top Tone Holdings (each a "Put Party") shall, subject to the provisions of this Clause 12, have the option irrevocable and unconditional right to require CME ME to purchase all or any part of its Ownership Interests in Top Tone Media and Zopal respectively at the Put Price (the "Put").
12.2 Subject to Clause 15.3, the Put Option") to require shall be exercisable at any time following the PC, upon termination fifth anniversary of the Management Services date of this Agreement by or at any time following the MSO under Section 10.2 thereof or upon expiration giving of a Call Notice otherwise than in respect of all of the Term Ownership Interests in Top Tone Media or in Zopal above an Ownership Interest of 6%, as applicable.
12.3 The right of a Put Party to exercise the Management Services Agreement, toPut is conditional upon the following:
(a) Purchase from neither Top Tone Holdings nor any of its Affiliates or, as the MSO at book value all case may be, neither the Top Tone Parties nor any of their respective Affiliates being in material breach of any of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic Office, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; andTransaction Documents;
(b) Purchasethe Put Party having full unencumbered right and title to its entire Ownership Interest in Top Tone Media or in Zopal, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇▇▇▇▇▇▇ and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assetsas applicable; and
(c) Assume all debt no Event of Default shall have occurred and all contracts, payables and leases which are obligations be continuing.
12.4 A Put Party may only exercise the Put by giving a written exercise notice (a "Put Notice") to CME ME. The Put Notice shall:
(a) state that the Put Party is exercising the Put;
(b) request CME ME nominate an Investment Bank for purposes of the MSO Valuation; and
(c) state the anticipated time and place on which relate solely CME ME shall be obliged, subject to the performance of its obligations under the Management Services Agreement or the properties subleased in respect completion of the Orthodontic Office. If Valuation, to acquire the MSO desires entire Ownership Interests of the Put Party in exchange of payment by CME ME of the Put Price, which (subject to exercise its Put Option, the MSO such terms and conditions) shall give written notice of such election to the PC and Dr. Azani at least occur on a date falling not more than twenty (20) calendar days ▇▇▇▇▇ ▇▇ Business Days after the date on which such Valuation is completed (or, in each case, such later date as is necessary to obtain all required governmental and regulatory approvals and consents) (the "Put Closing Date").
12.5 Once given, a Put Notice shall be irrevocable.
12.6 If CME ME receives a Put Notice, CME ME may give written notice (an "Objection Notice") to the Put Party within ten (10) Business Days of the receipt of such Put Notice of any objections to the exercise of the Put. If such Objection Notice contains valid grounds for objection, the Put shall not be exercisable. If the grounds for objection specified in the Objection Notice are capable of remedy, the Put Party may remedy any such notice grounds for objection. If, following such a remedy, the Put Party wishes to exercise the Put, it shall recommence the process outlined in this Clause 12.
12.7 Within twenty (20) Business Days of receipt of a Put Notice (provided that no Objection Notice containing valid grounds for objection has been served), each of CME ME and Top Tone Holdings shall appoint an Investment Bank (in each case as the date an expert and not an arbitrator) for the closing purposes of determining the Valuation.
12.8 CME ME and the Put Party shall instruct their respective Investment Banks to agree on common valuation parameters within fifteen (15) Business Days of appointment (which shall be limited to considerations of economic value only, on a "debt-free, cash-free" basis viewed as a passive investment without regard for any board or management positions or any share transfer restrictions).
12.9 CME ME and the Put Party shall use their commercially reasonable efforts to cause their respective Investment Banks to provide their valuations of the Ownership Interests within thirty (30) Business Days of agreeing the common valuation parameters.
12.10 In the event that a third Investment Bank is jointly appointed, CME ME and the Put Party shall use their commercially reasonable efforts to cause such Investment Bank to provide its valuation of the Ownership Interests within twenty (20) Business Days of its appointment based on the same valuation principles as referred to in Clause 12.8.
12.11 The consummation of the Put Optionshall take place at such time and place as may be specified in the Put Notice in accordance with the foregoing or otherwise agreed among the Parties. Any CME ME shall have no obligation to pay any portion of the Put Price unless all conditions to the exercise of the Put Option are satisfied and remain satisfied on the Put Closing Date. CME ME shall pay the full amount of the Put Price to such bank account as is nominated in writing for such purpose by the MSO Put Party.
12.12 The Parties agree that if they determine that the transfer and payment arrangements described herein are not structured properly to optimize the tax and accounting treatment to the level intended by the Parties, they shall be made by cooperate in good faith to agree on and implement an aggregate payment alternative structure or make any appropriate changes to the existing structure. All such changes shall in all material respects result in maintaining the same balance of commercial and economic interests of the amounts computed under Clauses (a) and (b) of this Section 2 (collectively, the "Put Price")Parties as existed before making any such changes.
Appears in 1 contract
Sources: Shareholder Agreement (Central European Media Enterprises LTD)
Put Option. The MSO shall have the option (the "Put Option") to require the PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase Subject to Section 3.1 hereof, at any time on and from the MSO at book value all earlier of (1) the leasehold improvements, fixtures, furniture, furnishings and equipment comprising date falling 10 months from the date hereof (or located at any later date as may be agreed in writing between the Orthodontic OfficeParties from time to time, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared electronic mail in accordance with GAAP clause 5.4 below or otherwise) and (2) the "Balance Sheet") to reflect operations occurrence of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇a ▇▇▇▇▇▇ and other intangible assets set forth on Insolvency Event, until the Balance Sheetdate falling 36 months from the date hereof (the “Option Period”), reflecting amortization or depreciation of the restrictive covenantsHolder shall have the right (such right, and any goodwill and other intangible assets; and
(c) Assume all debt and all contractsthe “Option”), payables and leases which are obligations of but not the MSO and which relate solely obligation, to exercise an option to sell to the performance Purchaser the Put Exercise Percentage (as set out in the relevant Exercise Notice) of its obligations under all the Management Services Agreement or the properties subleased rights and interests in respect of the Orthodontic Office. If Investment (which Option may be exercised any number of times, each time by an Exercise Notice referring to a separate Put Exercise Percentage in accordance herewith) which, in each case, shall include the MSO desires relevant Put Exercise Percentage of each of the following:
(i) ownership of all Securities provided to exercise its Put Optionthe Osprey Parties in connection with the Investments and any rights, interests, benefits and entitlements relating thereto including any related subscription rights and, in each case, any Related Rights relating to them which have either been obtained, paid or accruing on and from the date hereof;
(ii) ownership of all Warrants provided to the Osprey Parties in connection with the Investments and any rights, interests, benefits and entitlements relating thereto including any related subscription rights and, in each case, any Related Rights relating to them which have either been obtained, paid or accruing on and from the date hereof;
(iii) any Conversion Securities (if any) and any rights and, interests, benefits and entitlements relating thereto (including any Related Rights in connection therewith) obtained or accruing on and from the date hereof, and
(iv) any other rights, interests, benefits or entitlements provided to any Osprey Parties under the Transaction Documents relating thereto in each case as adjusted to take into account any stock split, reverse stock split, stock dividend, reorganisation or similar event affecting the number of Securities, Warrants, Conversion Securities or conversion rights, (the above, the MSO shall give written notice of such election to “Option Interests” and the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ Put Exercise Percentage thereof being, the date specified “Exercised Option Interests”), in such notice as the date each case, for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and Exercise Price.
(b) of this Section 2 (collectively, The Put Exercise Percentage set out in each Exercise Notice shall not exceed the "Put Price")Exercise Percentage Cap.
Appears in 1 contract
Put Option. The MSO 4.1 At any time between the twelfth (12th) month anniversary of the effective date of this Agreement, and the expiration period established in Section 4.3, Madera shall have the option be entitled to contribute (the "Put OptionPUT OPTION") to require the PC, upon termination capital of Cardinal all of the Management Services Shares then owned by Madera (the "PUT SHARES") for a Class A Limited Partnership Interest (the "Interest"). Attached hereto as Exhibit A is the Agreement by of Limited Partnership of Cardinal. In the MSO event Madera exercises its put option under this Section 10.2 thereof or upon expiration 4, the Agreement of Limited Partnership of Cardinal shall be amended to reflect the Term of the Management Services Agreement, tofollowing:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic Office, including all replacements and additions thereto made by the MSO pursuant The Interest shall be entitled to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared receive distributions in accordance with GAAP an amount equal to (the "Balance SheetPRIORITY POSITION"): (i) forty cents (U.S.$.40) multiplied by the number of Put Shares contributed by Madera to reflect operations of Cardinal LESS (ii) any cash dividends, cash distributions or other consideration received by Madera from UniMark with respect to the MSO Put Shares. In addition, during the period that the Put Option has been exercised without distributions to Madera, the Interest shall be entitled to receive distributions in respect of an amount equal to 6.0% per annum multiplied by the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; andunpaid Priority Position.
(b) Purchase, by obtaining an assignment from Upon the MSO, at book valueentire amount of the distributions under (a) being made, the right to receive payments for breach holder of the restrictive covenants provided for in Section 3.7 Interest shall be entitled to no further distributions from Cardinal and the Interest shall be assigned to the nominee of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇▇▇▇▇▇▇ and other intangible assets set forth on the Balance Sheet, reflecting amortization Cardinal or depreciation of the restrictive covenants, and any goodwill and other intangible assets; andotherwise be extinguished.
(c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic Office. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO No distribution shall be made by an aggregate payment to any other partner of Cardinal so long as the holder of the amounts computed Interest has not received the entire amount of distributions provided under Clauses (a).
(d) Approval of the holder of the Interest shall be required if Cardinal proposes to incur any indebtedness or other obligations which would significantly impair the ability of Cardinal to make the distributions under (a) and with respect to the Interest.
(be) Any income realized by Cardinal in any fiscal year shall be allocated to the Interest to the extent distributions are made with respect thereto.
(f) On a dissolution of this Section 2 (collectivelyCardinal, the "Put Price")holder of the Interest shall be entitled to any distributions under (a) to the extent such distributions remained unpaid prior to any distributions to the partners of Cardinal.
Appears in 1 contract
Sources: Shareholder Agreement (Cardinal-UniMark Investors, L.P.)
Put Option. The MSO shall have the option (the "Put Option") to require the New PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic OfficeOffices, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of at the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic OfficeOffices, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani Leonard contemplated thereunder, and any an▇ ▇▇▇ ▇▇▇▇▇▇▇▇ l and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and
(c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic OfficeOffices. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the New PC and Dr. Azani Leonard at least twenty (20) calendar days day▇ ▇▇▇▇▇ ▇▇ the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and (b) of this Section 2 (collectively, the "Put Price").
Appears in 1 contract
Sources: Stock Put/Call Option and Successor Designation Agreement (Omega Orthodontics Inc)
Put Option. The MSO shall have the option (the "Put Option") to require the New PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic OfficeOffices, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of at the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic OfficeOffices, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani Feldman contemplated thereunder, and any goodwill and ot▇▇▇ ▇▇▇▇▇▇▇▇ and other intangible ible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and
(c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic OfficeOffices. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the New PC and Dr. Azani Feldman at least twenty (20) calendar days prior to the date ▇▇▇▇▇▇▇▇▇ ▇▇ the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and (b) of this Section 2 (collectively, the "Put Price").
Appears in 1 contract
Sources: Stock Put/Call Option and Successor Designation Agreement (Omega Orthodontics Inc)
Put Option. The MSO shall have the option (the "Put Option") to require the PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase Subject to Section 3.1 hereof, at any time on and from the MSO at book value all earlier of (1) the leasehold improvements, fixtures, furniture, furnishings and equipment comprising date falling 6 months from the date on which the Investment is made (or located at any later date as may be agreed in writing between the Orthodontic OfficeParties from time to time, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared electronic mail in accordance with GAAP clause 5.4 below or otherwise) and (2) the "Balance Sheet") to reflect operations occurrence of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇a ▇▇▇▇▇▇ and other intangible assets set forth on Insolvency Event, until the Balance Sheetdate falling 36 months from the date hereof (the “Option Period”), reflecting amortization or depreciation of the restrictive covenantsHolder shall have the right (such right, and any goodwill and other intangible assets; and
(c) Assume all debt and all contractsthe “Option”), payables and leases which are obligations of but not the MSO and which relate solely obligation, to exercise an option to sell to the performance Purchaser the Put Exercise Percentage (as set out in the relevant Exercise Notice) of its obligations under all the Management Services Agreement or the properties subleased rights and interests in respect of the Orthodontic Office. If Investment (which Option may be exercised any number of times, each time by an Exercise Notice referring to a separate Put Exercise Percentage in accordance herewith) which, in each case, shall include the MSO desires relevant Put Exercise Percentage of each of the following :
(i) ownership of all equity securities provided to exercise its Put Optionthe Osprey Parties in connection with the Investments and any rights, interests, benefits and entitlements relating thereto including any related subscription rights and, in each case, any Related Rights relating to them which have either been obtained, paid or accruing on and from the date hereof;
(ii) any Conversion Securities (if any) and any rights and, interests, benefits and entitlements relating thereto (including any Related Rights in connection therewith) obtained or accruing on and from the date hereof, and
(iii) any other rights, interests, benefits or entitlements provided to any Osprey Parties under the Transaction Documents relating thereto in each case as adjusted to take into account any stock split, reverse stock split, stock dividend, reorganisation or similar event affecting the number of equity securities, Conversion Securities or conversion rights, (the above, the MSO shall give written notice of such election to “Option Interests” and the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ Put Exercise Percentage thereof being, the date specified “Exercised Option Interests”), in such notice as the date each case, for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and Exercise Price.
(b) of this Section 2 (collectively, The Put Exercise Percentage set out in each Exercise Notice shall not exceed the "Put Price")Exercise Percentage Cap.
Appears in 1 contract
Put Option. The MSO shall have the option (the "Put Option") to require the New PC, but not ▇▇. ▇▇▇▇▇▇ individually, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic OfficeOffices, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of at the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic OfficeOffices, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇. ▇▇▇▇▇▇ contemplated thereunder, and any goodwill and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and
(c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic OfficeOffices. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the New PC and Dr. Azani ▇▇. ▇▇▇▇▇▇ at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ prior to the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and (b) of this Section 2 (collectively, the "Put Price").
Appears in 1 contract
Sources: Stock Put/Call Option and Successor Designation Agreement (Omega Orthodontics Inc)
Put Option. The MSO shall have the option (the "Put Option") to require the New PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic OfficeOffices, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of at the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic OfficeOffices, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani ▇▇. ▇▇▇▇▇ contemplated thereunder, and any ▇▇▇▇▇▇▇▇ goodwill and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and
(c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic OfficeOffices. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the New PC and Dr. Azani ▇▇. ▇▇▇▇▇ at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ prior to the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and (b) of this Section 2 (collectively, the "Put Price").
Appears in 1 contract
Sources: Stock Put/Call Option and Successor Designation Agreement (Omega Orthodontics Inc)
Put Option. The MSO shall have the option (the "Put Option") to require the PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase Subject to Section 3.1 hereof, at any time on and from the MSO at book value all earlier of (1) the leasehold improvements, fixtures, furniture, furnishings and equipment comprising date falling 10 months from the date hereof (or located at any later date as may be agreed in writing between the Orthodontic OfficeParties from time to time, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared electronic mail in accordance with GAAP clause 5.4 below or otherwise) and (2) the "Balance Sheet") to reflect operations occurrence of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇a ▇▇▇▇▇▇ and other intangible assets set forth on Insolvency Event, until the Balance Sheetdate falling 30 months from the Original Put Option Date (the “Option Period”), reflecting amortization or depreciation of the restrictive covenantsHolder shall have the right (such right, and any goodwill and other intangible assets; and
(c) Assume all debt and all contractsthe “Option”), payables and leases which are obligations of but not the MSO and which relate solely obligation, to exercise an option to sell to the performance Purchaser the Put Exercise Percentage (as set out in the relevant Exercise Notice) of its obligations under all the Management Services Agreement or the properties subleased rights and interests in respect of the Orthodontic Office. If Exchange Shares (which Option may be exercised any number of times, each time by an Exercise Notice referring to a separate Put Exercise Percentage in accordance herewith) which, in each case, shall include the MSO desires relevant Put Exercise Percentage of each of the following:
(i) ownership of all Exchange Shares provided to exercise its the Osprey Parties and any rights, interests, benefits and entitlements relating thereto including any related subscription rights and, in each case, any Related Rights relating to them which have either been obtained, paid or accruing on and from the Original Put OptionOption Date;
(ii) any Conversion Securities (if any) and any rights and, interests, benefits and entitlements relating thereto (including any Related Rights in connection therewith) obtained or accruing on and from the Original Put Option Date, and
(iii) any other rights, interests, benefits or entitlements provided to any Osprey Parties under the Exchange Agreement relating thereto in each case as adjusted to take into account any stock split, reverse stock split, stock dividend, reorganisation or similar event affecting the number of Exchange Shares, Conversion Securities or conversion rights, (the above, the MSO shall give written notice of such election to “Option Interests” and the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ Put Exercise Percentage thereof being, the date specified “Exercised Option Interests”), in such notice as the date each case, for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and Exercise Price.
(b) of this Section 2 (collectively, The Put Exercise Percentage set out in each Exercise Notice shall not exceed the "Put Price")Exercise Percentage Cap.
Appears in 1 contract
Put Option. The MSO shall have the option (the "Put Option") to require the PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic Office, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani Villa contemplated thereunder, and any ▇▇▇▇▇▇▇▇ and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and
(c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic Office. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the PC and Dr. Azani Villa at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and (b) of this Section 2 (collectively, the "Put Price").
Appears in 1 contract
Sources: Stock Put/Call Option and Successor Designation Agreement (Omega Orthodontics Inc)
Put Option. The MSO (a) Except as set forth in Section 1.2(b), at any time after the third anniversary of the Closing Date and prior to the fourth anniversary of the Closing Date, the Selling Stockholders shall have the option right (the "Put Option") to require compel the PCPurchaser and/or Sterling to purchase the remaining shares of Sterling Common Stock that such Selling Stockholders own after the Closing (the "Put Elected Shares"), upon termination at a price of one hundred five dollars and twenty-six cents ($105.26) per share of Sterling Common Stock (the Management Services Agreement "Exercise Price"); provided, however, that the Purchaser shall not be required to purchase such Put Elected Shares until the number of Put Elected Shares exceeds 50% of those 114,000 shares of Sterling Common Stock owned by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at Selling Stockholders immediately following the Orthodontic Office, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP Closing (the "Balance SheetPut Threshold Share -2- 11 Amount"), in which event the Purchaser shall be required to purchase all of the shares of Sterling Common Stock held by all of the Selling Stockholders at such time (the "Put Shares") to reflect operations of at the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; andExercise Price.
(b) PurchaseNotwithstanding Section 1.2(a), by obtaining the Selling Stockholders shall be entitled to immediately exercise the Put Option at any time prior to the fourth anniversary of the Closing Date in the event that (i) the Purchaser enters into a binding agreement to sell its entire interest in Sterling or its stock in SCPI (as defined in Section 1.7 hereof), whether pursuant to a stock sale, merger, consolidation or sale of all or substantially all of the assets of Sterling other than to an assignment from "affiliate" (within the MSOmeaning of Rule 12b-2 under the Securities Exchange Act of 1934, at book valueas amended (the "Exchange Act"), or any successor provision), (ii) the Purchaser enters into a binding agreement to sell any Sterling Common Stock or SCPI stock or any security convertible into, exchangeable for or granting the right to receive payments for breach purchase, any Sterling Common Stock or SCPI stock other than a transfer to an "affiliate" (within the meaning of Rule 12b-2 under the Exchange Act) of the restrictive covenants provided Purchaser that does not affect the Purchaser's ability to consolidate with Sterling and SCPI for in Section 3.7 federal income tax purposes, (iii) there is a binding agreement for the sale, lease or transfer, directly or indirectly, of all or substantially all of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇▇▇▇▇▇▇ and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, Purchaser to any "Person" or "group" (within the meaning of Sections 13(d)(3) and any goodwill and other intangible assets; and
(c14(d)(2) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely Exchange Act, or any successor provision to either of the performance foregoing, including any group acting for the purpose of its obligations acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Management Services Agreement Exchange Act), (iv) there is a binding agreement for a Change of Control, or the properties subleased in respect (v) there is a Change of the Orthodontic Office. If the MSO desires to exercise its Put OptionControl (clauses (i), the MSO shall give written notice of such election to the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses ii), (aiii) and (biv) are referred to herein as a "Triggering Transaction"). For purposes of this Agreement, "Change of Control" means (A) the approval by the requisite stockholders of the Purchaser of a plan of liquidation or dissolution of the Purchaser, (B) any "Person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of this Section 2 the Exchange Act, or any successor provision to either of the foregoing, including any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d- 5(b)(1) under the Exchange Act) becomes the "beneficial owner" (collectivelyas defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of all classes of the voting stock of the Purchaser and/or warrants or options to acquire such voting stock, calculated on a fully diluted basis, unless, as a result of such transaction, the "Put Price")ultimate direct or indirect ownership of the Purchaser is substantially the same immediately after such transaction as it was immediately prior to such transaction, or (C) the adoption by the Purchaser's Board of Directors or by the Purchaser's stockholders, of a plan of consolidation or merger of the Purchaser pursuant to which the Purchaser Common Stock is converted into cash, securities or other property, in each case other than a consolidation or merger of the Purchaser in which the holders of Purchaser Common Stock and other capital stock of the Purchaser entitled to vote in the election of directors of the Purchaser, immediately prior to the consolidation or merger have, directly or indirectly, at least a majority of the total aggregate voting power of capital stock entitled to vote in the election of directors of the continuing or surviving corporation immediately after the consolidation or merger. Notwithstanding the foregoing, it is agreed and understood that a sale of assets of SCPI shall not be deemed to result in a Change of Control.
Appears in 1 contract
Put Option. The MSO shall have the option (the "Put Option") to require the New PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at the greater of the fair market value or the book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic OfficeEndodontic Offices, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of at the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic OfficeEndodontic Offices, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at the greater of the fair market value or book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any Holt co▇▇▇▇▇▇▇▇ ▇ed thereunder, and any goodwill and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and
(c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic OfficeEndodontic Offices. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the New PC and Dr. Azani Holt at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ ▇enty (20) calendar days prior to the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and (b) of this Section 2 (collectively, the "Put Price"). It is understood and agreed that Dr. Holt wil▇ ▇▇▇▇▇nue to be bound by the terms of the non-competition agreement attached hereto as Exhibit C. Notwithstanding the foregoing, in the event of Dr. Holt, ne▇▇▇▇▇ ▇▇ega nor the MSO shall be entitled to exercise the Put Option against Dr. Holt's e▇▇▇▇▇.
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Sources: Stock Put/Call Option and Successor Designation Agreement (Omega Orthodontics Inc)
Put Option. The MSO shall have the option (the "Put Option") to require the New PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic OfficeEndodontic Offices, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of at the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic OfficeEndodontic Offices, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani Gray contemplated thereunder, and any ▇▇▇▇▇▇▇▇ l and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; and
(c) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic OfficeEndodontic Offices. If the MSO desires to exercise its Put Option, the MSO shall give written notice of such election to the New PC and Dr. Azani Gray at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ the date specified in such notice as the date for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and (b) of this Section 2 (collectively, the "Put Price").
Appears in 1 contract
Sources: Stock Put/Call Option and Successor Designation Agreement (Omega Orthodontics Inc)
Put Option. The MSO shall have the option (the "Put Option") to require the PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase Subject to Section 3.1 hereof, at any time on and from the MSO at book value all earlier of (1) the leasehold improvements, fixtures, furniture, furnishings and equipment comprising date falling 10 months from the date hereof (or located at any later date as may be agreed in writing between the Orthodontic OfficeParties from time to time, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared electronic mail in accordance with GAAP clause 5.4 below or otherwise) and (2) the "Balance Sheet") to reflect operations occurrence of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇a ▇▇▇▇▇▇ Insolvency Event, until the date falling 12 months from the date hereof (the “Option Period”), the Holder shall have the right (such right, the “Option”), but not the obligation, to exercise an option to sell to the Purchaser the Put Exercise Percentage (as set out in the relevant Exercise Notice) of all the rights and other intangible assets set forth on interests in respect of each Investment (which Option may be exercised any number of times, each time by an Exercise Notice referring to a separate Put Exercise Percentage in accordance herewith) which, in each case, shall include the Balance Sheet, reflecting amortization or depreciation relevant Put Exercise Percentage of each of the restrictive covenants, following:
(i) ownership of all Note provided to the Osprey Parties in connection with the Investments and any goodwill rights, interests, benefits and other intangible assets; entitlements relating thereto including any related subscription rights and, in each case, any Related Rights relating to them which have either been obtained, paid or accruing on and from the Original Put Option Date;
(ii) ownership of all Warrants provided to the Osprey Parties in connection with the Investments and any rights, interests, benefits and entitlements relating thereto including any related subscription rights and, in each case, any Related Rights relating to them which have either been obtained, paid or accruing on and from the Original Put Option Date;
(iii) any Conversion Securities (if any) and any rights and, interests, benefits and entitlements relating thereto (including any Related Rights in connection therewith obtained or accruing on and from the Original Put Option Date, and
(civ) Assume all debt and all contractsany other rights, payables and leases which are obligations of the MSO and which relate solely interests, benefits or entitlements provided to the performance of its obligations any Osprey Parties under the Management Services Agreement Transaction Documents relating thereto, in each case as adjusted to take into account any stock split, reverse stock split, stock dividend, reorganisation or similar event affecting the properties subleased in respect number of Note, Warrants, Conversion Securities or conversion rights, (the Orthodontic Office. If the MSO desires to exercise its Put Optionabove, the MSO shall give written notice of such election to “Option Interests” and the PC and Dr. Azani at least twenty (20) calendar days ▇▇▇▇▇ ▇▇ Put Exercise Percentage thereof being, the date specified “Exercised Option Interests”), in such notice as the date each case, for the closing of the Put Option. Any exercise of the Put Option by the MSO shall be made by an aggregate payment of the amounts computed under Clauses (a) and Exercise Price.
(b) of this Section 2 (collectively, The Put Exercise Percentage set out in each Exercise Notice shall not exceed the "Put Price")Exercise Percentage Cap.
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Put Option. The MSO (a) In the event, and ONLY in the event, that a Triggering Event shall have occurred and is continuing, during the Put Option Period, Nixon and/or his Permitted Transferees shall have the option right and opti▇▇, ▇ut not the obligation (the "Put Option") ), to require cause the PCPurchaser and/or Blakey to redeem and repurchase, upon termination in whole or in part, all shares of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from the MSO at book value all of the leasehold improvements, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic Office, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet") to reflect operations of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunder, and any ▇▇▇▇▇▇ser Common Stock owned of record by Nixon and/or his Permitted Transferees, all upon the terms and subje▇▇ ▇▇ the conditions hereinafter set forth.
(b) The Put Option may be exercised by Nixon and/or his Permitted Transferee(s) only in the event and other intangible assets to th▇ ▇▇▇ent that a Triggering Event shall have occurred and is continuing. Subject to the foregoing, the Put Option may be exercised by written notice from Nixon and/or his Permitted Transferee(s) to the Purchaser and Blakey (▇▇▇ "Put Notice"), which Put Notice shall set forth on (i) the Balance Sheet, reflecting amortization or depreciation of ▇▇▇▇ ▇f the restrictive covenantsPerson(s) exercising such Put Option, and any goodwill (ii) the number of shares of Purchaser Common Stock which Nixon and/or his Permitted Transferee wishes the Purchaser and other intangible assets; andBlake▇ ▇▇ redeem and repurchase.
(c) Assume all debt and all contractsThe Purchaser shal▇, payables and leases which are obligations ▇▇▇ later than thirty (30) days from receipt of the MSO Put Notice, advise Nixon or his Permitted Transferee(s) in writing (the "Put Response L▇▇▇▇▇") as to (i) the date of the proposed closing of the redemption and which relate solely repurchase of the aggregate number of shares of the Purchaser Common Stock subject to the performance Put Option and included in the Put Notice (the "Put Securities"), which date (the "Put Effective Date") shall be not later than ten (10) days from the date the EBITDA Statement is mutually agreed to between the parties; and (ii) the method of its obligations under the Management Services Agreement or the properties subleased in respect payment of the Orthodontic OfficePut Option Price for such Put Securities on the Put Effective Date, and if such payment shall not be in cash by wire transfer of immediately available funds, appropriately detailed terms of payment and reasons for the deferral. In addition, the Purchaser will on or before the date of delivery of the Put Response Letter, instruct the independent accountants engaged by the Purchaser to (i) audit its financial statements, to conduct a special review and calculation of the EBITDA of the Purchaser and its consolidated Subsidiaries for the relevant Fiscal Year, and (ii) prepare and deliver the EBITDA Statement to the Purchaser and Nixon or his Permitted Transferee(s) not later than 45 days from the ▇▇▇▇ of the Put Response Letter.
(d) Nixon and/or his Permitted Transferee(s) shall have the right to rev▇▇▇ ▇ully all work papers relating to the EBITDA Statement in order to confirm that such EBITDA Statement has been determined as provided herein. Nixon and/or his Permitted Transferee(s) shall complete their review ▇▇ ▇uch EBITDA Statement within thirty (30) days after such determination and related documentation have been made available for its review. If Nixon and/or his Permitted Transferee(s) believe that any adjustment ▇▇▇▇ld be made to such EBITDA Statement in order for it be prepared in accordance with the MSO desires to exercise its Put Optionrequirements of this Agreement, the MSO Nixon and/or his Permitted Transferee(s) shall give written notice of such election to the PC and Dr. Azani at least twenty (20) calendar days Purchaser wr▇▇▇▇▇ notice of such adjustments. If the Purchaser agrees with the adjustments proposed by Nixon and/or his Permitted Transferee(s), the adjustments shall be m▇▇▇ ▇o such EBITDA Statement. If there are proposed adjustments which are disputed by the Purchaser, then the Purchaser and Nixon and/or his Permi▇▇▇▇ Transferee(s) shall negotiate in good faith to resolve all disputed adjustments. If, after a period of ten (10) days following the date specified on which Nixon and/or his Permitted Transferee(s) gives the Purchaser written ▇▇▇▇ce of any proposed adjustments, any such adjustments still remain disputed, Nixon and/or his Permitted Transferee(s) and the Purchaser will join▇▇▇ ▇ngage a nationally recognized independent accounting firm (other than the accounting firm used by the Purchaser to prepare the EBITDA Statement) (the "Independent Accountant") to resolve any remaining disputed adjustments in accordance with this Agreement, and the decision of the Independent Accountant shall be final, binding and nonappealable on the parties hereto and shall be deemed a final arbitration award that is enforceable pursuant to the terms of the Federal Arbitration Act. All fees and expenses of the Independent Accountant incurred in connection with such notice resolution shall be split equally between the parties.
(e) The per share price which the Purchaser shall be required to pay to Nixon or any of his Permitted Transferees upon the exercise of the P▇▇ ▇▇tion during the Put Option Period (the "Put Option Price") shall be equal to the GREATER of (i) $1.96 per share, (ii) 100% of the Formula Value divided by the issued and outstanding shares of Purchaser Common Stock, and (iii) the arithmetic average of the closing price of a share of the Purchaser Common Stock, as then traded on the date National Association of Securities Dealers, Inc. OTC-Bulletin Board, The Nasdaq Stock Exchange, the American Stock Exchange or any other national securities exchange, for the twenty (20) consecutive trading days ending on the last business day immediately preceding the closing of the Put OptionEffective Date (if publicly traded at such time).
(f) On each occasion that a Put Notice shall be given, the Purchaser will undertake to pay the Put Option Price for the Put Securities in cash in immediately available funds on the Put Effective Date. Any exercise If, due to restrictions under applicable law or any credit agreement binding upon the Purchaser, the Purchaser shall be unable to pay all of the Put Option by the MSO shall be Price in cash, or if such payment, if made by an aggregate payment Purchaser, would have a substantial material adverse effect on the liquidity and capital resources of the amounts computed under Clauses Purchaser, then and in either such events, Blakey shall pay such unpaid portion of the Put Option Price in cash.
(ag) Notwithstanding anything to the contrary, express or implied, contained in this Agreement, the Put Option set forth in this Section 3.1 shall (i) terminate and be of no further force or effect after December 31, 2004, unless previously exercised in accordance with this Section 3.1, and (bii) may not be assigned or otherwise Transferred by Nixon, except to a Permitted Transferee. Upon any such permitted ass▇▇▇▇▇nt, such Permitted Transferee shall execute and deliver to the Purchaser such joinder or related agreement and undertaking to be bound by and subject to all of the terms and conditions of this Section 2 (collectively, the "Put Price")Agreement.
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Put Option. The MSO shall have the option (the "Put Option") to require the PC, upon termination of the Management Services Agreement by the MSO under Section 10.2 thereof or upon expiration of the Term of the Management Services Agreement, to:
(a) Purchase from N▇▇▇ hereby grants to M▇ ▇▇▇▇▇▇ one or more options (each a “Put Option” and collectively the MSO at book value all of “Put Options” and, collectively with the leasehold improvementsCall Option, fixtures, furniture, furnishings and equipment comprising or located at the Orthodontic Office, including all replacements and additions thereto made by the MSO pursuant to the performance of its obligations under the Management Services Agreement and all other assets, including inventory and supplies and intangibles, set forth on the balance sheet as of the end of the month immediately preceding the date of such termination or expiration prepared in accordance with GAAP (the "Balance Sheet"“Options”) to reflect operations of the MSO in respect of the Orthodontic Office, including depreciation, amortization and other adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at book value, the right sell to receive payments for breach of the restrictive covenants provided for in Section 3.7 of the Management Services Agreement and in the applicable Employment Agreement with Dr. Azani contemplated thereunderNICK, and any to compel N▇▇▇ to purchase from M▇ ▇▇▇▇▇▇▇▇ , the Put Shares for the Purchase Price pursuant to the following terms and other intangible assets set forth on the Balance Sheet, reflecting amortization or depreciation of the restrictive covenants, and any goodwill and other intangible assets; andconditions:
(ci) Assume all debt and all contracts, payables and leases which are obligations of the MSO and which relate solely to the performance of its obligations under the Management Services Agreement or the properties subleased in respect of the Orthodontic Office. If the MSO desires to exercise its The Put Option, the MSO Options shall give become exercisable on not less than ninety (90) days prior written notice of such election to the PC and Dr. Azani at least twenty (20) calendar days by M▇ ▇▇▇▇▇▇ to N▇▇▇ (a “Put Option Notice”) at any time following the fifth anniversary of the Closing Date and prior to the fifteenth anniversary of the Closing Date (the “Put Period”), subject to the following conditions:
(A) If M▇ ▇▇▇▇▇▇ is terminated for Cause (as defined in his Employment Agreement (as defined in the SPA), as then in effect), M▇ ▇▇▇▇▇▇ shall not have any right to exercise any Put Option, or otherwise take any action that would result in an Option Closing, during the period commencing on the date specified of such termination through and including the date that is the one-year anniversary of such date of termination.
(B) M▇ ▇▇▇▇▇▇ shall not have any right to exercise any Put Option, or otherwise take any action that would result in an Option Closing, if as a result of such notice Option Closing M▇ ▇▇▇▇▇▇ would no longer own at least 158 shares of Common Stock of Amplex Holdings, which number is subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like, until:
(1) if M▇ ▇▇▇▇▇▇ has ceased to serve as the Chief Executive Officer of Amplex or will cease to serve as the Chief Executive Officer of Amplex as of the Option Closing, the earlier of (x) the date a successor acceptable to the Board of Directors of NICK or Amplex, as determined by N▇▇▇ (the “Board”), has been appointed to serve as the Chief Executive Officer (or interim Chief Executive Officer of Amplex or substantially similar title) or (y) the date that is eighteen (18) months after the date M▇ ▇▇▇▇▇▇ ceased to serve as the Chief Executive Officer of Amplex.
(2) if M▇ ▇▇▇▇▇▇ continues to serve as the Chief Executive Officer of Amplex, the date the Board has identified a presumptive successor Chief Executive Officer of Amplex.
(C) So long as M▇ ▇▇▇▇▇▇ is the Chief Executive Officer of Amplex from the Closing Date through the fifth anniversary of the Closing Date, the Put Options are only exercisable during the Put Period if the EBITDA Performance Metric has been achieved.
(D) If M▇ ▇▇▇▇▇▇ ceases to serve as the Chief Executive Officer of Amplex at any time prior to the fifth anniversary of the Closing Date, the EBITDA Performance Metric condition shall not apply to exercise a Put Option.
(E) M▇ ▇▇▇▇▇▇ may exercise the Put Options one or more times during the Put Period; provided, that M▇ ▇▇▇▇▇▇ may only exercise a Put Option once per twelve month period and for no less than 1,000 shares of Common Stock of Amplex Holdings (subject to adjustment for any stock split, stock dividend, recapitalization, merger, consolidation, or similar event) per exercise or, if less than 1,000 shares then remain, all the Put Shares that then remain in their entirety.
(ii) The aggregate purchase price for the closing Put Shares upon exercise of a Put Option shall be the Purchase Price.
(iii) The Put Option Notice shall include M▇ ▇▇▇▇▇▇’▇ good faith calculation of the Purchase Price, along with supporting documentation used in preparation of the calculation of the Purchase Price. If NICK disputes (A) that the EBITDA Performance Metric has been achieved, if applicable, (B) the satisfaction of the conditions set forth in Section 3.02(a)(i), or (C) the calculation of the Purchase Price included in the Put Option. Any exercise Option Notice, then NICK shall within twenty (20) days of receipt of the Put Option by Notice provide written notice, including supporting documentation and with reasonable detail, to M▇ ▇▇▇▇▇▇ of its (I) determination as to whether or not the MSO shall be made by an aggregate payment EBITDA Performance Metric has been achieved, if applicable, (II) determination as to whether or not the applicable condition has been satisfied, or (III) calculation of the amounts computed under Clauses Purchase Price (athe “Put Dispute Notice”). During such twenty (20) day period, M▇ ▇▇▇▇▇▇ shall respond to any questions NICK, its accountants and (b) of this Section 2 (collectively, other advisors may have regarding the "Put Price")Option Notice.
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