GAIA » Topics » 5.4 Buy/Sell

This excerpt taken from the GAIA 8-K filed Aug 9, 2005.
5.4          Buy/Sell.

 

(a)           Commencing on the fourth anniversary of date of this Agreement (the “Trigger Date”), Revolution Living will have the right, exercisable upon delivery of written notice to the Rysavy (the “Buy/Sell Notice”) on or prior to 30 days after the Trigger Date, to invoke the buy/sell procedures set forth in this Section 5.4.  The Buy/Sell Notice shall constitute an offer by Revolution Living to (x) sell all of Revolution Living’s and its Affiliates’ shares of Common Stock to Rysavy, or (y) purchase from Rysavy all shares of Common Stock owned by Rysavy and his Affiliates, in each case for cash, at a per share price not less than the average of the closing sales prices of the Class A Common Stock during the 90 calendar days prior to the delivery of the Buy/Sell Notice (the “Buy/Sell Price”).  The Buy/Sell Notice shall specify a closing date not fewer than 120 days or more than 150 days from delivery of the Buy/Sell Notice.  This Section 5.4 shall be binding on Rysavy’s estate.  If Gaiam has repurchased shares of Stock from Rysavy’s estate pursuant to the Redemption Agreement, then Gaiam and Revolution Living agree that any such shares of Stock shall be included in the buy/sell set forth in this Section 5.4, and any decision by Rysavy’s estate to sell shares pursuant to this Section 5.4 shall be binding on Gaiam.  If Gaiam has purchased from Rysavy’s estate pursuant to the Redemption Agreement a majority of the shares of Stock that the estate originally received from Rysavy, then Gaiam shall make any decision on whether to buy or sell shares pursuant to this Section 5.4, and any such decision shall be binding on Rysavy’s estate.

 

(b)           On or before the date that is 30 days after the date of delivery of the Buy/Sell Notice, Rysavy shall deliver to Revolution Living a notice either accepting its offer to purchase all shares of Common Stock owned by Rysavy and his Affiliates, or accepting the offer of Revolution Living to sell to Rysavy all shares of Common Stock held by Revolution Living and its Affiliates, in each case for the Buy/Sell Price.  If Rysavy fails to respond to the Buy/Sell Notice within such 30-day period, such failure to respond shall be deemed Rysavy’s election to

 

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accept the offer of Revolution Living to sell all of its and its Affiliates’ shares of Common Stock to Rysavy.

 

(c)           If a purchase and sale of shares under this Section 5.4 is being consummated, at the closing date (i) the purchaser will pay, to an account designated prior to the closing of such purchase by the seller(s), the applicable purchase price for the shares of Common Stock being purchased by wire transfer of immediately available funds, and (ii) the seller(s) will deliver to the purchaser one or more certificates or book entry transfers evidencing the Common Stock being sold, and all shares sold pursuant to this Section 5.4 shall be delivered to the purchaser free and clear of any Liens (other than Liens arising under federal and state securities laws and Liens created by the purchaser).  For purposes of this Section 5.4, the Buy/Sell Price shall be equitably adjusted to reflect any stock splits, stock dividends and similar transactions occurring after the date of delivery of the Buy/Sell Notice.

 

(d)           The closing of the purchase and sale of shares under this Section 5.4 shall be conditioned upon (i) no Applicable Law shall have been enacted and no Proceeding shall be pending which prohibits or seeks to prohibit, or materially restricts or delays, the consummation of the transactions contemplated by this Section 5.4 or materially restricts or impairs the ability of the purchaser to own the shares being acquired and (ii) the purchaser and the seller(s) shall have made and/or obtained all notices, consents, approvals, and authorizations necessary to consummate the transactions contemplated by this Section 5.4, including without limitation all applicable filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.  The failure of any such conditions to be satisfied will delay the closing until such conditions are satisfied but will not relieve any Party of its obligations hereunder to consummate the closing.

 

(e)           Both before and after the closing pursuant to this Section 5.4, each Party agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Section 5.4.

 

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