Common use of ROFR Clause in Contracts

ROFR. (1) 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 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 (including any information provided to the third party and a copy of the Third Party Offer) (the "ROFR Offer"); provided that, if the Third Party Offer includes non-cash consideration that is personal to the third party (including shares of the third party), 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 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 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) If Wheaton, or an Affiliate of Wheaton, does not accept the ROFR Offer or does not give notice in accordance with the provisions of Section 2.2(2) that it is willing to purchase the ROFR Interest, then the Vendor shall be free to 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 Interest (the "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 Interest that is the subject to the 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 2.2 shall apply to such Third Party Offer if and only if Newmont Corporation has waived its rights pursuant to the Newmont ROFR or has failed to exercise the Newmont ROFR. It is understood and agreed that the Corporation shall send any such Third Party Offer and associated ROFR Offer to Wheaton at the same time that comparable documents are provided to Newmont Corporation pursuant to the Newmont ROFR, but conditional on the foregoing, 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. (1i) If the Corporation or any of its Affiliates Party receives an unsolicited offer (the "Vendor"), receives a definitive other than an offer from a third party that would be binding upon acceptance by the Vendor, to Transfer a ROFR Interest (a "Third Party 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 (including any information provided to the third party and a copy of the Third Party Offer) (the "ROFR Offer"); provided that, if the Third Party Offer includes consummated, would constitute a Permitted Transfer pursuant to Sections 15.03(a)-(g)) from a non-cash consideration that is personal Affiliated third-Person to the third party (including shares of the third party), then Wheaton shall be entitled to substitute such non-cash consideration with cash Transfer all or non-cash consideration that is personal to Wheaton (including shares of Wheaton or any part of its Affiliates) Ownership Interests, the Transferring Party may make such Transfer only if it has complied with the same or greater value, liquidity provisions of this Section 15.02 and marketability as the third party's non-cash consideration; and further provided that, if the Third Party Offer includes or such Transfer is conditional upon the purchase of any asset other than a 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 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) If Wheaton, or an Affiliate of Wheaton, does not accept the ROFR Offer or does not give notice made in accordance with the provisions other Transmission Use and Capacity Exchange Agreement requirements of Section 2.2(2this 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) that it is willing 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 (the “ROFR Offered Interest”), then (C) the Vendor identity of the proposed transferee and (D) the date on which the offer shall expire if not accepted, which shall be free 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 sell acquire all (but not less than all) of such the ROFR Interest Offered Interest, upon the same terms and conditions that are set forth in the ROFR Offer Notice, by giving written notice to the applicable third party pursuant Transferring Party on or prior to the Third Party Offer. If ROFR Offer Deadline stating that it elects to acquire 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 (the "Third Party Agreement") within 90 days after the expiry of the 60-day period set forth in Section 2.2(2“ROFR Return Notice”), then which election may be subject to receipt of PUCN Approval and any required Governmental Approvals on terms acceptable to the Corporation 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 Vendor shall again ROFR Offered Interest may be required thereafter Transferred to comply with the non-Affiliated third-Person as long as the terms of this Agreement with respect such Transfer are the same as, or more favorable to that Third the Transferring Party Offer before selling than, those described in the ROFR Interest that is the subject to the 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 OfferNotice. (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 2.2 shall apply to such Third Party Offer if and only if Newmont Corporation has waived its rights pursuant to the Newmont ROFR or has failed to exercise the Newmont ROFR. It is understood and agreed that the Corporation shall send any such Third Party Offer and associated ROFR Offer to Wheaton at the same time that comparable documents are provided to Newmont Corporation pursuant to the Newmont ROFR, but conditional on the foregoing, 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).