Buyer Change in Control means the occurrence of any of the following: (a) any Person is or becomes the owner or “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of securities of the Buyer representing more than fifty-one percent (51%) of the combined voting power of the then outstanding securities; (b) consummation of a merger, consolidation or reorganization of the Buyer with any other company, or a sale of all or substantially all the assets of the Buyer (a “Transaction”), other than a Transaction that would result in the voting securities of the Buyer outstanding immediately prior thereto continuing to represent either directly or indirectly more than fifty-one percent (51%) of the combined voting power of the then outstanding securities of the Buyer or such surviving or purchasing entity; (c) the shareholders of the Buyer approve a plan of complete liquidation of the Buyer and such liquidation is consummated; or (d) during any period of twelve (12) consecutive months commencing on the date hereof, (i) the individuals who constitute the Board of Directors of the Buyer on the date hereof, and (ii) any new director who is elected by the Board of Directors of the Buyer or is nominated for election by the Buyer’s stockholders and whose election or nomination is approved by a vote of more than fifty percent (50%) of the directors then still in office who either are directors on the date hereof or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board of Directors of the Buyer.
Buyer Change in Control means (a) a merger or consolidation in which (i) Buyer is a constituent party, or (ii) a Subsidiary of Buyer is a constituent party and Buyer issues shares of its capital stock pursuant to such merger or consolidation, except in the case of either clause (i) or (ii) any such merger or consolidation involving Buyer or a Subsidiary of Buyer in which the shares of capital stock of Buyer outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock which represent, immediately following such merger or consolidation, more than sixty percent (60%) by voting power of the capital stock of (A) the surviving or resulting corporation or (B) if the surviving or resulting corporation is a wholly owned Subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; (b) the sale by Buyer of all or substantially all the assets of Buyer and its Subsidiaries taken as a whole; or (c) the sale by the stockholders of Buyer of more than forty percent (40%) by voting power of the then-outstanding capital stock of Buyer to any single Person or “group” (as defined in the Exchange Act) of Persons.
In the event of a Buyer Change in Control prior to the Measurement Date, an Earn-Out Payment equal to $5,000,000 will become immediately due and payable to the Sellers and, following such payment, this Section 2.7 will have no further force or effect.
For avoidance of doubt, for purposes of this Section 2.10 Buyer shall be deemed to include any Acquiror after any Buyer Change in Control or Product Divestiture.
If, during the term of this Agreement, Buyer shall propose to engage in a Buyer Change in Control (as defined below) transaction, then Buyer shall notify Supplier in writing of such proposed Buyer Change in Control promptly (and in any case, prior to the consummation of such Buyer Change in Control).
Upon such assignment, the acquiror must agree in writing (a copy of which is delivered to Supplier prior to the consummation of such Buyer Change in Control) to assume this Agreement and to be bound by the terms of this Agreement.