Common use of ROFR Clause in Contracts

ROFR. (i) If any Party receives an unsolicited offer (other than an offer that, if consummated, would constitute a Permitted Transfer pursuant to Sections 15.03(a)-(g)) from a non-Affiliated third-Person to Transfer all or part of its Ownership Interests, the Transferring Party may make such Transfer only if it has complied with the provisions of this Section 15.02 and such Transfer is made in accordance with the other Transmission Use and Capacity Exchange Agreement requirements of this Article XV. Prior to making such Transfer, the Transferring Party shall give to the other Parties written notice (except a Party that, at the time, is in default under Sections 16.01(a), (f) or (g)) of the proposed transaction (the “ROFR Offer Notice”), which notice shall fully disclose (A) the terms of the proposed transaction, (B) the Ownership Interests subject to the ROFR Offer Notice (the “ROFR Offered Interest”), (C) the identity of the proposed transferee and (D) the date on which the offer shall expire if not accepted, which shall be at least thirty (30) days after each other Party has received the ROFR Offer Notice (the “ROFR Offer Deadline”). (ii) Upon receipt of a ROFR Offer Notice, any Party receiving such notice shall have a right to acquire all (but not less than all) of the ROFR Offered Interest, upon the same terms and conditions that are set forth in the ROFR Offer Notice, by giving written notice to the Transferring Party on or prior to the ROFR Offer Deadline stating that it elects to acquire the ROFR Offered Interest (the “ROFR Return Notice”), which election may be subject to receipt of PUCN Approval and any required Governmental Approvals on terms acceptable to the NVE Parties. A failure to give the ROFR Return Notice by the ROFR Offer Deadline shall be deemed to be an election not to acquire the ROFR Offered Interest and, if both other Parties elect not to acquire the ROFR Offered Interest, subject to the Transferring Party’s compliance with the provisions of Section 15.01, Sections 15.02(a) and (d) and Section 15.04, the ROFR Offered Interest may be thereafter Transferred to the non-Affiliated third-Person as long as the terms of such Transfer are the same as, or more favorable to the Transferring Party than, those described in the ROFR Offer Notice.

ROFR. (i1) If the Corporation or any of its Affiliates (the "Vendor"), receives a definitive offer from a third party that would be binding upon acceptance by the Vendor, to Transfer a ROFR Interest (a "Third Party receives an unsolicited Offer"), and the Vendor is willing to accept that Third Party Offer, then the Corporation shall cause the Vendor, by notice in writing delivered to Wheaton, to offer to sell all, but not less than all, of the ROFR Interest so sought to be Transferred to the third party under the Third Party Offer to Wheaton on the same financial terms and otherwise upon the same terms and conditions as are contained in the Third Party Offer, and to provide to Wheaton the best available information that the Vendor has with respect to the ROFR Interest (other than an offer including any information provided to the third party and a copy of the Third Party Offer) (the "ROFR Offer"); provided that, if consummatedthe Third Party Offer includes non-cash consideration that is personal to the third party (including shares of the third party), would constitute then Wheaton shall be entitled to substitute such non-cash consideration with cash or non-cash consideration that is personal to Wheaton (including shares of Wheaton or any of its Affiliates) with the same or greater value, liquidity and marketability as the third party's non-cash consideration; and further provided that, if the Third Party Offer includes or is conditional upon the purchase of any asset other than a Permitted Transfer ROFR Interest from the Vendor, then the ROFR Offer shall similarly include such other assets. (2) Wheaton, or an Affiliate of Wheaton, may, within 60 days from the date of receipt of the ROFR Offer, accept the financial terms of the ROFR Offer by notice in writing delivered to the Vendor. During the 60 day period, the Parties shall negotiate the other terms and conditions in the ROFR Offer; provided that if the Parties are not able to agree upon the other terms and conditions in the ROFR Offer, Wheaton may elect to accept the ROFR Offer on the same terms and conditions contemplated in the ROFR Offer by notice in writing delivered to the Vendor, in which event it shall then become a binding agreement of purchase and sale between Wheaton, or an Affiliate of Wheaton, and the Vendor; provided further that, if so elected by Wheaton (or its Affiliate) in its acceptance notice and without affecting the binding nature of the agreement between the Vendor and Wheaton, or an Affiliate of Wheaton, Wheaton may require that the terms and conditions contained in the ROFR Offer be amended to require that metals sales and deliveries be sold and delivered to Wheaton, or an Affiliate of Wheaton, pursuant to Sections 15.03(a)-(g)a transaction structure acceptable to ▇▇▇▇▇▇▇, acting reasonably, rather than as contemplated in the ROFR Offer; provided that such amendment does not adversely change the economic substance of the amended ROFR Offer as compared to the Third Party Offer. (3) from a non-Affiliated third-Person to Transfer all If Wheaton, or part an Affiliate of its Ownership InterestsWheaton, does not accept the Transferring Party may make such Transfer only if it has complied ROFR Offer or does not give notice in accordance with the provisions of this Section 15.02 and such Transfer 2.2(2) that it is made in accordance with the other Transmission Use and Capacity Exchange Agreement requirements of this Article XV. Prior willing to making such Transfer, the Transferring Party shall give to the other Parties written notice (except a Party that, at the time, is in default under Sections 16.01(a), (f) or (g)) of the proposed transaction (the “ROFR Offer Notice”), which notice shall fully disclose (A) the terms of the proposed transaction, (B) the Ownership Interests subject to purchase the ROFR Offer Notice (Interest, then the “ROFR Offered Interest”), (C) the identity of the proposed transferee and (D) the date on which the offer shall expire if not accepted, which Vendor shall be at least thirty (30) days after each other Party has received the ROFR Offer Notice (the “ROFR Offer Deadline”). (ii) Upon receipt of a ROFR Offer Notice, any Party receiving such notice shall have a right free to acquire sell all (but not less than all) of such ROFR Interest to the applicable third party pursuant to the Third Party Offer. If the Vendor and the third party have not entered into a binding, written agreement pertaining to all (but not less than all) of such ROFR Offered Interest, upon Interest (the same terms and conditions that are "Third Party Agreement") within 90 days after the expiry of the 60-day period set forth in Section 2.2(2), then the Corporation and the Vendor shall again be required to comply with the terms of this Agreement with respect to that Third Party Offer before selling the ROFR Offer Notice, by giving written notice to Interest that is the Transferring Party on or prior to the ROFR Offer Deadline stating that it elects to acquire the ROFR Offered Interest (the “ROFR Return Notice”), which election may be subject to receipt of PUCN Approval and any required Governmental Approvals on terms acceptable to the NVE Parties. A failure to give the ROFR Return Notice by the ROFR Offer Deadline shall be deemed to be an election not to acquire the ROFR Offered Interest and, if both other Parties elect not to acquire the ROFR Offered Interest, subject to the Transferring Party’s compliance Third Party Offer to a third party. The Corporation shall provide Wheaton with a copy of the Third Party Agreement promptly once it is executed and delivered, and shall execute and deliver to Wheaton at the completion of the transactions contemplated by the Third Party Agreement a certificate of a senior officer of the Corporation certifying that the sale of the ROFR Interest to the third party was completed pursuant to the terms of the Third Party Offer. (4) For the avoidance of doubt: (a) this Section 2.2 is intended to apply, mutatis mutandis, to any offer made by a Vendor to any third party to Transfer a ROFR Interest or where the Vendor otherwise proposes to enter into an agreement with a third party to Transfer a ROFR Interest, with such changes as are necessary to make this Section 2.2 applicable thereto; (b) a Vendor shall be entitled at any time to negotiate with any third party the terms upon which such third party may purchase a ROFR Interest, provided that before such terms are accepted, the Vendor complies with this Section 2.2; and (c) to the extent that the Newmont ROFR applies to a Third Party Offer with respect to the Mountain View Property, the provisions of this Section 15.01, Sections 15.02(a) 2.2 shall apply to such Third Party Offer if and (d) and Section 15.04, the ROFR Offered Interest may be thereafter Transferred only if Newmont Corporation has waived its rights pursuant to the non-Affiliated third-Person as long as Newmont ROFR or has failed to exercise the terms of Newmont ROFR. It is understood and agreed that the Corporation shall send any such Transfer are Third Party Offer and associated ROFR Offer to Wheaton at the same as, or more favorable time that comparable documents are provided to Newmont Corporation pursuant to the Transferring Party thanNewmont ROFR, those described in but conditional on the ROFR Offer Noticeforegoing, so that the time frame of Wheaton's right of first refusal under this Section 2.2 shall run concurrently and not consecutively with that of the Newmont ROFR, and the provisions of this Section 2.2 shall otherwise apply mutatis mutandis to give effect to the intent of this Section 2.2(4)(c).

ROFR. Landlord hereby grants to Tenant a right of first refusal, on the terms and conditions hereinafter set forth (ithe “ROFR”). For (x) the first two (2) times within the Initial Term ROFR Periods (as defined below) that Landlord has received a letter of intent or similar acknowledged proposal for the lease of premises located on the second floor of the Building (the “Letter of Intent”), and (y) the first two (2) times after June 30, 2018 that Landlord has received a Letter of Intent, Landlord shall give Tenant written notice accompanied by a copy of the Letter of Intent (from which Landlord may redact information identifying the other party). The term “Initial Term ROFR Periods” shall mean the period from July 1, 2007 to June 30, 2011 and the period from July 1, 2014 to June 30, 2018, the parties acknowledging that the ROFR shall not be available in respect of any Letter of Intent received within the period from July 1, 2011 to June 30, 2014, and that the ROFR shall be available no more than two (2) times prior to June 30, 2014. Tenant may, at its option, elect to lease the premises described in the Letter of Intent (the “ROFR Premises”) upon all of the terms and conditions set forth in the Letter of Intent (except as otherwise expressly provided below), by written notice to Landlord given not later than five (5) business days after Landlord’s notice is given (“Tenant’s Election Period”), time being of the essence. If Tenant does not timely make such election, Landlord may market the ROFR Premises and enter into a lease thereof to a third party tenant, except that prior to a lease thereof at a rent more than ninety percent (90%) lower than stated in Landlord’s notice to Tenant, Landlord shall again give Tenant notice of Tenant’s right to make the election herein provided. After Landlord shall have provided Tenant with notice of Tenant’s rights under this Paragraph on two (2) occasions during the Term (with any Party receives an unsolicited offer (other than an offer that, if consummated, would constitute a Permitted Transfer pursuant re-submission in order to Sections 15.03(a)-(g)) from a non-Affiliated third-Person to Transfer all or comply with the 90% requirement stated above constituting part of its Ownership Interestsa single such occasion), the Transferring Party ROFR shall thereupon terminate in its entirety, and Landlord may make such Transfer only if it thereafter offer and lease premises on the second floor of the Building without notice to Tenant and free of any right of Tenant. If Tenant has complied with the provisions of this Section 15.02 and such Transfer is made validly exercised a ROFR in accordance with the other Transmission Use terms hereof, Landlord and Capacity Exchange Agreement requirements Tenant shall enter into a written amendment to this Lease confirming the terms, conditions and provisions applicable to Tenant’s lease of the ROFR Premises. Tenant acknowledges and agrees that the ROFR will not apply to any renewal or extension of the term of an existing tenant with premises on the second floor of the Building or to any expansion, first offer or first refusal rights contained in existing leases in the Building, and that the ROFR shall not be available in respect of any Letter of Intent which provides for the delivery of the second floor premises within the last three years of the Term, as the same may have been extended pursuant hereto. Tenant may exercise its ROFR, and an exercise thereof shall be effective, only if: (i) at the time of Tenant’s exercise of said right and, at Landlord’s option, on the date of delivery of the ROFR Premises, Tenant is not in monetary default under this Article XV. Prior to making Lease (or such Transfer, the Transferring Party shall give default is cured prior to the other Parties end of Tenant’s Election Period) and Tenant is not otherwise in default hereunder beyond written notice from Landlord and expiration of the applicable cure period herein provided; and (except a Party thatii) inasmuch as said right is intended only for the benefit of the original Tenant named in this Lease, at the time, is in default under Sections 16.01(a), Tenant has not assigned or otherwise transferred this Lease or sublet more than twenty-five percent (f) or (g)25%) of the proposed transaction (the “ROFR Offer Notice”), which notice shall fully disclose (A) the terms Rentable Square Feet of the proposed transactionPremises, (B) the Ownership Interests subject to the ROFR Offer Notice (the “ROFR Offered Interest”), (C) the identity of the proposed transferee excluding any and (D) the date on which the offer shall expire if not accepted, which shall be at least thirty (30) days after each other Party has received the ROFR Offer Notice (the “ROFR Offer Deadline”)all Permitted Transfers. (ii) Upon receipt of a ROFR Offer Notice, any Party receiving such notice shall have a right to acquire all (but not less than all) of the ROFR Offered Interest, upon the same terms and conditions that are set forth in the ROFR Offer Notice, by giving written notice to the Transferring Party on or prior to the ROFR Offer Deadline stating that it elects to acquire the ROFR Offered Interest (the “ROFR Return Notice”), which election may be subject to receipt of PUCN Approval and any required Governmental Approvals on terms acceptable to the NVE Parties. A failure to give the ROFR Return Notice by the ROFR Offer Deadline shall be deemed to be an election not to acquire the ROFR Offered Interest and, if both other Parties elect not to acquire the ROFR Offered Interest, subject to the Transferring Party’s compliance with the provisions of Section 15.01, Sections 15.02(a) and (d) and Section 15.04, the ROFR Offered Interest may be thereafter Transferred to the non-Affiliated third-Person as long as the terms of such Transfer are the same as, or more favorable to the Transferring Party than, those described in the ROFR Offer Notice.

ROFR. During the Term, on a New OTC Product-by-New OTC Product basis, Sensory Cloud shall have a right of first refusal with respect to the research, development or commercialization of any New OTC Product (the “ROFR”). Accordingly, pursuant to such ROFR, prior to Pulmatrix either (i) If becoming bound by or a party to any bona fide term sheet, letter of intent, or other document that has been negotiated in good faith by Pulmatrix with a Third Party receives an unsolicited offer (other than an offer that, if consummated, would constitute a Permitted Transfer pursuant to Sections 15.03(a)-(g)) from which Pulmatrix proposes to assign, license, or otherwise grant or transfer any rights to a non-Affiliated third-Person Third Party to Transfer all develop or part of its Ownership Interests, the Transferring commercialize any New OTC Product (a “Third Party may make such Transfer only if it has complied with the provisions of this Section 15.02 and such Transfer is made in accordance with the other Transmission Use and Capacity Exchange Agreement requirements of this Article XV. Prior to making such Transfer, the Transferring Party shall give to the other Parties written notice (except a Party that, at the time, is in default under Sections 16.01(a), (fAgreement”) or (g)ii) making any filing in connection with a Marketing Application for any New OTC Product, Pulmatrix shall provide written notice to Sensory Cloud, including a description of the proposed transaction (the “ROFR Offer Notice”)New OTC Product and, which notice shall fully disclose (A) the if applicable, detailed terms of the proposed transactionThird Party Agreement (each, (B) the Ownership Interests subject to the ROFR Offer Notice (the a “ROFR Offered InterestNotice”), (C) the identity of the proposed transferee and (D) the date on which the offer shall expire if not accepted, which shall be at least thirty (30) days after each other Party has received the ROFR Offer Notice (the “ROFR Offer Deadline”). (ii) to enable Sensory Cloud to fully exercise its rights under this Section 3.5. Upon receipt of a ROFR Offer Notice, any Party receiving such notice Sensory Cloud shall have [***] days to consider entering into a right to acquire all transaction with Pulmatrix (but not less than all) of the ROFR Offered Interest, upon on substantially the same terms as the Third Party Agreement, if applicable), and conditions that are set forth in the ROFR Offer Noticewithin such [***] day-period, by giving Sensory Cloud shall provide to Pulmatrix a written notice to the Transferring Party on or prior to the ROFR Offer Deadline stating that it elects to acquire the ROFR Offered Interest response (the “ROFR Return NoticeResponse”)) either electing to pursue such transaction or electing to not pursue such transaction. If Sensory Cloud elects to pursue such a transaction, which election may then the Parties shall thereafter proceed to negotiate in good faith and finalize a definitive agreement with respect to such transaction, but in any event, within [***] days of delivery of Sensory Cloud’s ROFR Response. If Sensory Cloud does not deliver a ROFR Response indicating its desire to pursue such transaction within such [***]-day-period or, if applicable, the parties do not enter into a definitive agreement with respect to such transaction within such [***] day period, Pulmatrix shall be subject free for a period of [***] days thereafter to receipt consummate the Third Party Agreement on substantially the same terms described in its ROFR Notice or proceed with the development or commercialization of PUCN Approval and any such New OTC Product, as applicable. If Pulmatrix does not consummate such Third Party Agreement on such terms or does not proceed with the development or commercialization of a New OTC Product, as applicable, within such [***] day period, then Pulmatrix shall be required Governmental Approvals on terms acceptable to comply with the NVE Parties. A failure to give procedures of the ROFR Return Notice by again if it desires to enter into any Third Party Agreement with a Third Party for the ROFR Offer Deadline shall be deemed to be an election not to acquire the ROFR Offered Interest and, if both other Parties elect not to acquire the ROFR Offered Interest, subject to the Transferring Party’s compliance same New OTC Product or proceed with the provisions of Section 15.01, Sections 15.02(a) and (d) and Section 15.04, the ROFR Offered Interest may be thereafter Transferred to the non-Affiliated third-Person as long as the terms development or commercialization of such Transfer are the same as, or more favorable to the Transferring Party than, those described in the ROFR Offer NoticeNew OTC Product.