Agreement to Sell and Purchase Shares. (a) At the Closing Date (as defined in Section 3), the Company will sell to the Purchaser, and the Purchaser will buy from the Company, upon the terms and conditions hereinafter set forth,______________ shares of Common Stock at the purchase price per Share equal to 20% below the average of the daily high and low trading prices of the Common Stock on the Nasdaq National Market on the five (5) trading days preceding the Commitment Date (as defined in Section 3) (the "Stock Purchase Price"). As of the date hereof such Stock Purchase Price is equal to $ _______ per share of Common Stock, for an aggregate stock purchase price of $ _________________ (the "Aggregate Stock Purchase Price"). (b) The Company proposes to enter into a similar form of Stock Purchase Agreement ("Other Stock Purchase Agreements") with certain other investors (the "Other Purchasers"). The Purchaser and the Other Purchasers are hereinafter sometimes collectively referred to as the "Purchasers," and this Stock Purchase Agreement and the Other Stock Purchase Agreements are hereinafter sometimes collectively referred to as the "Agreements." The Company may enter into Other Stock Purchase Agreements with Other Purchasers prior to the Closing Date which may differ from this Stock Purchase Agreement with respect to pricing or other terms. If such material differences are present in the Other Stock Purchase Agreements executed by Other Purchasers prior to the Closing Date, the Company will notify the Purchaser by distributing a supplemental Private Placement Memorandum disclosing such terms. (c) In the event the Other Stock Purchase Agreements executed with Other Purchasers prior to the Closing Date include a price per share of Common Stock which is less than $______ per share (the "Lower Share Price"), upon the Closing Date, the Purchaser shall be granted additional shares of Common Stock equal to the Aggregate Purchase Price divided by the Lower 2 Share Price, less the number of shares of Common Stock purchased by the Purchaser (the "Supplemental Shares").
Appears in 1 contract
Agreement to Sell and Purchase Shares. (a) At To the Closing Date (as defined in Section 3)extent the Initial Investors purchase Direct Subscription Shares or Unsubscribed Shares pursuant to the EPCA, the Company will Initial Investors shall sell to each Additional Investor (i) the Purchasersum of (A) the aggregate amount of Direct Subscription Shares purchased by the Initial Investors plus (B) the aggregate amount of Unsubscribed Shares purchased by the Initial Investors multiplied by (ii) the fractional amount set forth for each Additional Investor as set forth on Schedule I hereto, and rounded down to the Purchaser will buy from next whole Share for the Companyaggregate Purchase Price; provided, upon that the terms and conditions hereinafter set forth,______________ shares of Common Stock at the purchase price Purchase Price payable by any Additional Investor shall not be increased above $38.39 per Share equal without the written consent of such Additional Investor. No Additional Investor shall be required to 20% below the average purchase more than its maximum number of the daily high and low trading prices of the Common Stock Unsubscribed Shares as set forth on the Nasdaq National Market on the five (5) trading days preceding the Commitment Date (as defined in Section 3) (the "Stock Purchase Price"). As of the date hereof such Stock Purchase Price is equal to $ _______ per share of Common Stock, for an aggregate stock purchase price of $ _________________ (the "Aggregate Stock Purchase Price").
(b) The Company proposes to enter into a similar form of Stock Purchase Agreement ("Other Stock Purchase Agreements") with certain other investors (the "Other Purchasers")Schedule I hereto. The Purchaser Shares to be sold to and purchased by the Other Purchasers Additional Investors as set forth in this Section 2(a) are hereinafter sometimes collectively referred to as the "Purchasers," and this Stock Purchased Shares". The product of the Purchase Agreement Price multiplied by the number of Purchased Shares that each Additional Investor is obligated to purchase pursuant hereto is referred to herein as such Additional Investor's "Purchase Commitment."
(b) ADAH shall provide a copy of the Purchase Notice or the Satisfactixx Xotice, as applicable, to each Additional Investor promptly upon receipt of such notice from the Company. ADAH shall send to each Additional Investor at least two (2) Businxxx Days before the Settlement Date (as hereinafter defined) a written notice specifying the aggregate amount of Purchased Shares being purchased by the Initial Investors pursuant to the EPCA and the Other Stock Purchase Agreements are hereinafter sometimes collectively referred number of Purchased Shares to as be purchased by each Additional Investor pursuant to this Agreement (the "Agreements." The Company may enter into Other Stock Additional Investor Purchase Agreements with Other Purchasers prior to Notice"). Each Additional Investor agrees that such Additional Investor shall, on the Closing Date which may differ from this Stock Purchase Agreement with respect to pricing or other terms. If such material differences are present in the Other Stock Purchase Agreements executed by Other Purchasers prior to the Closing Settlement Date, purchase from the Company will notify Initial Investors the Purchaser by distributing a supplemental Private Placement Memorandum disclosing aggregate amount of Purchased Shares specified in such termsAdditional Investor Purchase Notice at the Purchase Price.
(c) In Each Additional Investor's payment of its Purchase Commitment for Purchased Shares, if any, shall be made without setoff or counterclaim not later than 12:00 Noon, New York City time, on the event second Business Day after the Other Stock Business Day that such Additional Investor receives the Additional Investor Purchase Agreements executed Notice. Such Business Day is hereinafter referred to as a "Settlement Date." The Purchased Shares shall be delivered against payment therefor on the Settlement Date or as soon as practicable thereafter.
(d) Each Additional Investor's payment pursuant to Section 2(c) shall be made by wire transfer to the Initial Investors at the account set forth on Schedule II hereto (or as otherwise notified to the Initial Investors in accordance with Other Purchasers Section 8), in U.S. Dollars ("Dollars") and in immediately available funds. Interest shall be payable to the Initial Investors as directed by ADAH on any unpaid amounts from the Settlement Date until payment xx xull at the rate that is equal to the 1-month London Interbank Offered Rate for Dollar deposits appearing on the Reuters Screen LIBO Page as of approximately 11:00 a.m. London time on the date two business days prior to the Closing Settlement Date include (or, if such rate does not appear on such Reuters Screen LIBO Page, from such other source as the Initial Investors shall reasonably determine), plus six percent. In addition, if any Additional Investor defaults in its obligation under Section 2(a), such Additional Investor shall pay or reimburse each Initial Investor for its reasonable costs and expenses, including the fees and expenses of its counsel, of collecting and enforcing the obligations of such defaulting Additional Investor.
(e) The delivery on the Settlement Date by the Initial Investors to each Additional Investor of Purchased Shares to be purchased by such Additional Investors pursuant to this Agreement may, at the election of ADAH, be effected by the direct issuance of such Purchased Shares xx xhe Additional Investors by the Company.
(f) The following shall be conditions to the purchase and sale of any Purchased Shares under this Agreement: (a) any applicable waiting period under the HSR Act shall have expired or been terminated; and (b) other waiting periods under any comparable laws or regulations in any foreign jurisdiction (all such laws and regulations, together with the HSR Act, are referred to as "Competition Laws") required for the consummation of the transactions contemplated by this Agreement shall have expired or been terminated and all other notifications, consents, authorizations and approvals required to be made or obtained from any competition or antitrust authority (all such authorities, including, without limitation, the United States Federal Trade Commission, the United States Department of Justice Antitrust Division and the European Commission, are referred to as "Regulatory Authorities") shall have been made or obtained for the transactions contemplated by this Agreement. Each Additional Investor shall use its best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary under Competition Laws to consummate and make effective the transactions contemplated by this Agreement, including furnishing all information required by applicable law in connection with approvals of or filings with a price per share Regulatory Authority, and filing, or causing to be filed, as promptly as practicable, any required notification and report forms or similar filings under Competition Laws with the applicable Regulatory Authority. In furtherance of Common Stock which the foregoing, each Additional Investor shall: (1) promptly file, to the extent that it is less than $______ per share required to file, the Notification and Report Form required under the HSR Act with respect to the transactions contemplated by this Agreement with the Antitrust Division of the United States Department of Justice and the United States Federal Trade Commission; (2) respond promptly to any request made by a Regulatory Authority for additional information, data or documents, whether formal or informal, mandatory or voluntary, including, without limitation, a request for additional information or documentary material under the HSR Act; (3) promptly notify the Initial Investors of, and, subject to appropriate confidentiality safeguards, if in writing and subject to reasonable confidentiality safeguards, furnish the Initial Investors with copies of (or, in the case of material oral communications, advise the other party orally of) any communications from or with a Regulatory Authority in connection with any of the transactions contemplated by this Agreement; (4) not participate in any meeting with a Regulatory Authority unless it consults with ADAH in advance and, to the extent permitted by such Regulatory Auxxxxity, gives ADAH a reasonable opportunity to attend and participate thereat anx xx comment on any written submissions or presentations made to any Regulatory Authority; (5) furnish the Initial Investors with copies of all correspondence, filings and communications between it and any Regulatory Authority with respect to any of the transactions contemplated by this Agreement; (6) at its sole cost, timely comply with all restrictions and conditions, if any, specified or imposed (either as a condition to granting clearance or as a condition to averting or settling any lawsuit that is or may be filed by any Regulatory Authority or private party to prevent consummation of the transactions contemplated by this Agreement) by any Regulatory Authority with respect to any laws as a requirement for granting any necessary clearance or terminating any applicable waiting period, subject to the approval of such course of action by ADAH, including agreeing to hold separate, divest, license or causx x third party to purchase assets and/or businesses of such Additional Investor, it being understood that such Additional Investor shall be permitted to negotiate in good faith with the Regulatory Authority; (7) not agree with any Regulatory Authority to delay the Settlement Date, and shall not agree to provide advance notice of the Settlement Date to any Regulatory Authority, in each case, without the consent of ADAH; and (8) otherwise use its best efforts to (a) cause the waitxxx periods under any Competition Laws to terminate or expire, or (b) obtain approval for the transactions contemplated by this Agreement under any Competition Laws, in each case, at the earliest possible date after the date of filing. Each Additional Investor shall reimburse or pay, as the case may be, its own out-of-pocket expenses incurred pursuant to this Section 2(f). Additionally, if any Initial Investor incurs out-of-pocket expenses in connection with any actions taken pursuant to this Section 2(f) with respect to any Additional Investor (including any required filing fees of any Initial Investor, reasonable fees, costs and expenses of counsel to each Initial Investor and the reasonable fees, costs and expenses of any other professionals obtained by each Initial Investor in connection therewith), then such Additional Investor shall reimburse or pay such expenses.
(g) To the extent the Company pays to the Initial Investors any portion of the Standby Commitment Fee (the "Lower Share PriceStandby Fee"), upon ) pursuant to the Closing DateEPCA, the Purchaser Initial Investors shall pay to each Additional Investor, within two (2) Business Days of the Initial Investors' receipt of any portion of the Standby Fee, an amount equal to (i) the portion of the Standby Fee so received multiplied by (ii) the fractional amount set forth for each Additional Investor as set forth on Schedule I hereto, rounded down to the next whole dollar; provided, if an Additional Investor notifies the Company that an Additional Investor Broker (such notification, and the identification of the Additional Investor Broker, to be made on Schedule I hereto on or prior to the execution and delivery of this Agreement) provided services in respect of the Standby Fee, the payment pursuant to this Section 2(g) shall be granted additional shares made to such Additional Investor Broker in consideration of Common Stock equal such services rather than to the Aggregate Purchase Price divided by Additional Investor; provided further, that the Lower 2 Share Price, less the number aggregate amount of shares of Common Stock purchased by the Purchaser Standby Fees and Breakup Fees (the "Supplemental Shares").as defined below) paid to each Additional Investor
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Samples: Additional Investor Agreement (Appaloosa Management Lp)
Agreement to Sell and Purchase Shares. (a) At To the Closing Date (as defined in Section 3)extent the Initial Investors purchase Direct Subscription Shares or Unsubscribed Shares pursuant to the EPCA, the Company will Initial Investors shall sell to each Additional Investor (i) the Purchasersum of (A) the aggregate amount of Direct Subscription Shares purchased by the Initial Investors plus (B) the aggregate amount of Unsubscribed Shares purchased by the Initial Investors multiplied by (ii) the fractional amount set forth for each Additional Investor as set forth on Schedule I hereto, and rounded down to the Purchaser will buy from next whole Share for the Companyaggregate Purchase Price; provided, upon that the terms and conditions hereinafter set forth,______________ shares of Common Stock at the purchase price Purchase Price payable by any Additional Investor shall not be increased above $38.39 per Share equal without the written consent of such Additional Investor. No Additional Investor shall be required to 20% below the average purchase more than its maximum number of the daily high and low trading prices of the Common Stock Unsubscribed Shares as set forth on the Nasdaq National Market on the five (5) trading days preceding the Commitment Date (as defined in Section 3) (the "Stock Purchase Price"). As of the date hereof such Stock Purchase Price is equal to $ _______ per share of Common Stock, for an aggregate stock purchase price of $ _________________ (the "Aggregate Stock Purchase Price").
(b) The Company proposes to enter into a similar form of Stock Purchase Agreement ("Other Stock Purchase Agreements") with certain other investors (the "Other Purchasers")Schedule I hereto. The Purchaser Shares to be sold to and purchased by the Other Purchasers Additional Investors as set forth in this Section 2(a) are hereinafter sometimes collectively referred to as the "Purchasers," and this Stock Purchased Shares". The product of the Purchase Agreement Price multiplied by the number of Purchased Shares that each Additional Investor is obligated to purchase pursuant hereto is referred to herein as such Additional Investor's "Purchase Commitment."
(b) XXXX shall provide a copy of the Purchase Notice or the Satisfaction Notice, as applicable, to each Additional Investor promptly upon receipt of such notice from the Company. XXXX shall send to each Additional Investor at least two (2) Business Days before the Settlement Date (as hereinafter defined) a written notice specifying the aggregate amount of Purchased Shares being purchased by the Initial Investors pursuant to the EPCA and the Other Stock Purchase Agreements are hereinafter sometimes collectively referred number of Purchased Shares to as be purchased by each Additional Investor pursuant to this Agreement (the "Agreements." The Company may enter into Other Stock Additional Investor Purchase Agreements with Other Purchasers prior to Notice"). Each Additional Investor agrees that such Additional Investor shall, on the Closing Date which may differ from this Stock Purchase Agreement with respect to pricing or other terms. If such material differences are present in the Other Stock Purchase Agreements executed by Other Purchasers prior to the Closing Settlement Date, purchase from the Company will notify Initial Investors the Purchaser by distributing a supplemental Private Placement Memorandum disclosing aggregate amount of Purchased Shares specified in such termsAdditional Investor Purchase Notice at the Purchase Price.
(c) In Each Additional Investor's payment of its Purchase Commitment for Purchased Shares, if any, shall be made without setoff or counterclaim not later than 12:00 Noon, New York City time, on the event second Business Day after the Other Stock Business Day that such Additional Investor receives the Additional Investor Purchase Agreements executed Notice. Such Business Day is hereinafter referred to as a "Settlement Date." The Purchased Shares shall be delivered against payment therefor on the Settlement Date or as soon as practicable thereafter.
(d) Each Additional Investor's payment pursuant to Section 2(c) shall be made by wire transfer to the Initial Investors at the account set forth on Schedule II hereto (or as otherwise notified to the Initial Investors in accordance with Other Purchasers Section 8), in U.S. Dollars ("Dollars") and in immediately available funds. Interest shall be payable to the Initial Investors as directed by XXXX on any unpaid amounts from the Settlement Date until payment in full at the rate that is equal to the 1-month London Interbank Offered Rate for Dollar deposits appearing on the Reuters Screen LIBO Page as of approximately 11:00 a.m. London time on the date two business days prior to the Closing Settlement Date include (or, if such rate does not appear on such Reuters Screen LIBO Page, from such other source as the Initial Investors shall reasonably determine), plus six percent. In addition, if any Additional Investor defaults in its obligation under Section 2(a), such Additional Investor shall pay or reimburse each Initial Investor for its reasonable costs and expenses, including the fees and expenses of its counsel, of collecting and enforcing the obligations of such defaulting Additional Investor.
(e) The delivery on the Settlement Date by the Initial Investors to each Additional Investor of Purchased Shares to be purchased by such Additional Investors pursuant to this Agreement may, at the election of XXXX, be effected by the direct issuance of such Purchased Shares to the Additional Investors by the Company.
(f) The following shall be conditions to the purchase and sale of any Purchased Shares under this Agreement: (a) any applicable waiting period under the HSR Act shall have expired or been terminated; and (b) other waiting periods under any comparable laws or regulations in any foreign jurisdiction (all such laws and regulations, together with the HSR Act, are referred to as "Competition Laws") required for the consummation of the transactions contemplated by this Agreement shall have expired or been terminated and all other notifications, consents, authorizations and approvals required to be made or obtained from any competition or antitrust authority (all such authorities, including, without limitation, the United States Federal Trade Commission, the United States Department of Justice Antitrust Division and the European Commission, are referred to as "Regulatory Authorities") shall have been made or obtained for the transactions contemplated by this Agreement. Each Additional Investor shall use its best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary under Competition Laws to consummate and make effective the transactions contemplated by this Agreement, including furnishing all information required by applicable law in connection with approvals of or filings with a price per share Regulatory Authority, and filing, or causing to be filed, as promptly as practicable, any required notification and report forms or similar filings under Competition Laws with the applicable Regulatory Authority. In furtherance of Common Stock which the foregoing, each Additional Investor shall: (1) promptly file, to the extent that it is less than $______ per share required to file, the Notification and Report Form required under the HSR Act with respect to the transactions contemplated by this Agreement with the Antitrust Division of the United States Department of Justice and the United States Federal Trade Commission; (2) respond promptly to any request made by a Regulatory Authority for additional information, data or documents, whether formal or informal, mandatory or voluntary, including, without limitation, a request for additional information or documentary material under the HSR Act; (3) promptly notify the Initial Investors of, and, subject to appropriate confidentiality safeguards, if in writing and subject to reasonable confidentiality safeguards, furnish the Initial Investors with copies of (or, in the case of material oral communications, advise the other party orally of) any communications from or with a Regulatory Authority in connection with any of the transactions contemplated by this Agreement; (4) not participate in any meeting with a Regulatory Authority unless it consults with XXXX in advance and, to the extent permitted by such Regulatory Authority, gives XXXX a reasonable opportunity to attend and participate thereat and to comment on any written submissions or presentations made to any Regulatory Authority; (5) furnish the Initial Investors with copies of all correspondence, filings and communications between it and any Regulatory Authority with respect to any of the transactions contemplated by this Agreement; (6) at its sole cost, timely comply with all restrictions and conditions, if any, specified or imposed (either as a condition to granting clearance or as a condition to averting or settling any lawsuit that is or may be filed by any Regulatory Authority or private party to prevent consummation of the transactions contemplated by this Agreement) by any Regulatory Authority with respect to any laws as a requirement for granting any necessary clearance or terminating any applicable waiting period, subject to the approval of such course of action by XXXX, including agreeing to hold separate, divest, license or cause a third party to purchase assets and/or businesses of such Additional Investor, it being understood that such Additional Investor shall be permitted to negotiate in good faith with the Regulatory Authority; (7) not agree with any Regulatory Authority to delay the Settlement Date, and shall not agree to provide advance notice of the Settlement Date to any Regulatory Authority, in each case, without the consent of XXXX; and (8) otherwise use its best efforts to (a) cause the waiting periods under any Competition Laws to terminate or expire, or (b) obtain approval for the transactions contemplated by this Agreement under any Competition Laws, in each case, at the earliest possible date after the date of filing. Each Additional Investor shall reimburse or pay, as the case may be, its own out-of-pocket expenses incurred pursuant to this Section 2(f). Additionally, if any Initial Investor incurs out-of-pocket expenses in connection with any actions taken pursuant to this Section 2(f) with respect to any Additional Investor (including any required filing fees of any Initial Investor, reasonable fees, costs and expenses of counsel to each Initial Investor and the reasonable fees, costs and expenses of any other professionals obtained by each Initial Investor in connection therewith), then such Additional Investor shall reimburse or pay such expenses.
(g) To the extent the Company pays to the Initial Investors any portion of the Standby Commitment Fee (the "Lower Share PriceStandby Fee"), upon ) pursuant to the Closing DateEPCA, the Purchaser Initial Investors shall pay to each Additional Investor, within two (2) Business Days of the Initial Investors' receipt of any portion of the Standby Fee, an amount equal to (i) the portion of the Standby Fee so received multiplied by (ii) the fractional amount set forth for each Additional Investor as set forth on Schedule I hereto, rounded down to the next whole dollar; provided, if an Additional Investor notifies the Company that an Additional Investor Broker (such notification, and the identification of the Additional Investor Broker, to be made on Schedule I hereto on or prior to the execution and delivery of this Agreement) provided services in respect of the Standby Fee, the payment pursuant to this Section 2(g) shall be granted additional shares made to such Additional Investor Broker in consideration of Common Stock equal such services rather than to the Aggregate Purchase Price divided by Additional Investor; provided further, that the Lower 2 Share Price, less the number aggregate amount of shares of Common Stock purchased by the Purchaser Standby Fees and Breakup Fees (the "Supplemental Shares").as defined below) paid to each Additional Investor
Appears in 1 contract
Agreement to Sell and Purchase Shares. (a) At To the Closing Date (as defined in Section 3)extent the Initial Investors purchase Direct Subscription Shares or Unsubscribed Shares pursuant to the EPCA, the Company will Initial Investors shall sell to each Additional Investor (i) the Purchasersum of (A) the aggregate amount of Direct Subscription Shares purchased by the Initial Investors plus (B) the aggregate amount of Unsubscribed Shares purchased by the Initial Investors multiplied by (ii) the fractional amount set forth for each Additional Investor as set forth on Schedule I hereto, and rounded down to the Purchaser will buy from next whole Share for the CompanyPurchase Price; provided, upon that the terms and conditions hereinafter set forth,______________ shares of Common Stock at the purchase price Purchase Price payable by any Additional Investor shall not be increased above $35.00 per Share equal without the written consent of such Additional Investor. No Additional Investor shall be required to 20% below the average purchase more than its maximum number of the daily high and low trading prices of the Common Stock Unsubscribed Shares as set forth on the Nasdaq National Market on the five (5) trading days preceding the Commitment Date (as defined in Section 3) (the "Stock Purchase Price"). As of the date hereof such Stock Purchase Price is equal to $ _______ per share of Common Stock, for an aggregate stock purchase price of $ _________________ (the "Aggregate Stock Purchase Price").
(b) The Company proposes to enter into a similar form of Stock Purchase Agreement ("Other Stock Purchase Agreements") with certain other investors (the "Other Purchasers")Schedule I hereto. The Purchaser Shares to be sold to and purchased by the Other Purchasers Additional Investors as set forth in this Section 2(a) are hereinafter sometimes collectively referred to as the "Purchasers," Purchased Shares". The product of the Purchase Price multiplied by the number of Purchased Shares that each Additional Investor is obligated to purchase pursuant hereto is referred to herein as such Additional Investor's "Purchase Commitment."
(b) ADAH and this Stock Dolce shall provide a copy of the Purchase Agreement Notice or the Xxxxsfaction Notice, as applicable, to each Additional Investor promptly upon receipt of such notice from the Company. ADAH and Dolce shall send to each Additional Investor at least two (0) Business Days before the Settlement Date (as hereinafter defined) a written notice specifying the aggregate amount of Purchased Shares being purchased by the Initial Investors pursuant to the EPCA and the Other Stock Purchase Agreements are hereinafter sometimes collectively referred number of Purchased Shares to as be purchased by each Additional Investor pursuant to this Agreement (the "Agreements." The Company may enter into Other Stock Additional Investor Purchase Agreements with Other Purchasers prior to Notice"). Each Additional Investor agrees that such Additional Investor shall, on the Closing Date which may differ from this Stock Purchase Agreement with respect to pricing or other terms. If such material differences are present in the Other Stock Purchase Agreements executed by Other Purchasers prior to the Closing Settlement Date, purchase from the Company will notify Initial Investors the Purchaser by distributing a supplemental Private Placement Memorandum disclosing aggregate amount of Purchased Shares specified in such termsAdditional Investor Purchase Notice at the Purchase Price.
(c) In Each Additional Investor's payment of its Purchase Price for Purchased Shares, if any, shall be made without setoff or counterclaim not later than 12:00 Noon, New York City time, on the event second Business Day after the Other Stock Business Day that such Additional Investor receives the Additional Investor Purchase Agreements executed Notice. Such Business Day is hereinafter referred to as a "Settlement Date." The Purchased Shares shall be delivered against payment therefor on the Settlement Date or as soon as practicable thereafter.
(d) Each Additional Investor's payment pursuant to Section 2(c) shall be made by wire transfer to the Initial Investors at the account set forth on Schedule II hereto (or as otherwise notified to the Initial Investors in accordance with Other Purchasers Section 8), in U.S. Dollars ("Dollars") and in immediately available funds. Interest shall be payable to the Initial Investors as directed by Dolce and ADAH on any unpaid amounts from the Settlement Date until payment xx xull at the rate that is equal to the 1-month London Interbank Offered Rate for Dollar deposits appearing on the Reuters Screen LIBO Page as of approximately 11:00 a.m. London time on the date two business days prior to the Closing Settlement Date include (or, if such rate does not appear on such Reuters Screen LIBO Page, from such other source as Initial Investor shall reasonably determine), plus six percent. In addition, if any Additional Investor defaults in its obligation under Section 2(a), such Additional Investor shall pay or reimburse each Initial Investor for its reasonable costs and expenses, including the fees and expenses of its counsel, of collecting and enforcing the obligations of such defaulting Additional Investor.
(e) The delivery on the Settlement Date by the Initial Investors to each Additional Investor of Purchased Shares to be purchased by such Additional Investors pursuant to this Agreement may, at the election of each of ADAH and Dolce, be effected by the direct issuance of such Purchasxx Xhares to the Additional Investors by the Company.
(f) The following shall be conditions to the purchase and sale of any Purchased Shares under this Agreement: (a) any applicable waiting period under the HSR Act shall have expired or been terminated; and (b) other waiting periods under any comparable laws or regulations in any foreign jurisdiction (all such laws and regulations, together with the HSR Act, are referred to as "Competition Laws") required for the consummation of the transactions contemplated by this Agreement shall have expired or been terminated and all other notifications, consents, authorizations and approvals required to be made or obtained from any competition or antitrust authority (all such authorities, including, without limitation, the United States Federal Trade Commission, the United States Department of Justice Antitrust Division and the European Commission, are referred to as "Regulatory Authorities") shall have been made or obtained for the transactions contemplated by this Agreement. Each Additional Investor shall use its best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary under Competition Laws to consummate and make effective the transactions contemplated by this Agreement, including furnishing all information required by applicable law in connection with approvals of or filings with a price per share Regulatory Authority, and filing, or causing to be filed, as promptly as practicable, any required notification and report forms or similar filings under Competition Laws with the applicable Regulatory Authority. In furtherance of Common Stock which the foregoing, each Additional Investor shall: (1) promptly file, to the extent that it is required to file, the Notification and Report Form required under the HSR Act with respect to the transactions contemplated by this Agreement with the Antitrust Division of the United States Department of Justice and the United States Federal Trade Commission; (2) respond promptly to any request made by a Regulatory Authority for additional information, data or documents, whether formal or informal, mandatory or voluntary, including, without limitation, a request for additional information or documentary material under the HSR Act; (3) promptly notify the Initial Investors of, and, subject to appropriate confidentiality safeguards, if in writing and subject to reasonable confidentiality safeguards, furnish the Initial Investors with copies of (or, in the case of material oral communications, advise the other party orally of) any communications from or with a Regulatory Authority in connection with any of the transactions contemplated by this Agreement; (4) not participate in any meeting with a Regulatory Authority unless it consults with ADAH and Dolce in advance and, to the extent permitted by such Regxxxxory Authority, gives ADAH and Dolce a reasonable opportunity to attend and participate xxxxeat and to comment on any written submissions or presentations made to any Regulatory Authority; (5) furnish the Initial Investors with copies of all correspondence, filings and communications between it and any Regulatory Authority with respect to any of the transactions contemplated by this Agreement; (6) at its sole cost, timely comply with all restrictions and conditions, if any, specified or imposed (either as a condition to granting clearance or as a condition to averting or settling any lawsuit that is or may be filed by any Regulatory Authority or private party to prevent consummation of the transactions contemplated by this Agreement) by any Regulatory Authority with respect to any laws as a requirement for granting any necessary clearance or terminating any applicable waiting period, subject to the approval of such course of action by ADAH and Dolce, including agreeing to hold separate, divest, licenxx xr cause a third party to purchase assets and/or businesses of such Additional Investor, it being understood that such Additional Investor shall be permitted to negotiate in good faith with the Regulatory Authority; (7) not agree with any Regulatory Authority to delay the Settlement Date, and shall not agree to provide advance notice of the Settlement Date to any Regulatory Authority, in each case, without the consent of ADAH and Dolce; and (8) otherwise use its best efforts to (a) causx xxe waiting periods under any Competition Laws to terminate or expire, or (b) obtain approval for the transactions contemplated by this Agreement under any Competition Laws, in each case, at the earliest possible date after the date of filing. Each Additional Investor shall reimburse or pay, as the case may be, its own out-of-pocket expenses incurred pursuant to this Section 2(f). Additionally, if any Initial Investor incurs out-of-pocket expenses in connection with any actions taken pursuant to this Section 2(f) with respect to any Additional Investor (including any required filing fees of any Initial Investor, reasonable fees, costs and expenses of counsel to each Initial Investor and the reasonable fees, costs and expenses of any other professionals obtained by each Initial Investor in connection therewith), then such Additional Investor shall reimburse or pay such expenses.
(g) To the extent the Company pays to the Initial Investors any portion of the Standby Commitment Fee (the "Standby Fee") pursuant to the EPCA, the Initial Investors shall pay to each Additional Investor, within two (2) Business Days of the Initial Investors' receipt of any portion of the Standby Fee, an amount equal to (i) the portion of the Standby Fee so received multiplied by (ii) the fractional amount set forth for each Additional Purchaser as set forth on Schedule I hereto, rounded down to the next whole dollar; provided, if an Additional Investor notifies the Company that an Additional Investor Broker (such notification, and the identification of the Additional Investor Broker, to be made on Schedule I hereto on or prior to the execution and delivery of this Agreement) provided services in respect of the Standby Fee, the payment pursuant to this Section 2(g) shall be made to such Additional Investor Broker in consideration of such services rather than to the Additional Investor; provided further, that the aggregate amount of Standby Fees and Breakup Fees (as defined below) paid to each Additional Investor or Additional Investor Broker, as the case may be, shall not exceed 1.25% of such Additional Investor's Purchase Commitment. The Initial Investors' payment pursuant to this Section 2(g) shall be made by wire transfer to each Additional Investor or Additional Investor Broker, as appropriate, at the account set forth on Schedule I hereto, in U.S. Dollars ("Dollars") and in immediately available funds.
(h) To the extent the Company pays to the Initial Investors the Alternate Transaction Fee (the "Breakup Fee") pursuant to the EPCA, the Initial Investors shall pay to the Additional Investors, within two (2) Business Days of such Initial Investor's receipt of the Breakup Fee, an amount equal to (i) 1.25% of such Additional Investor's Purchase Commitment less (ii) any Standby Fee previously paid to such Additional Investor; provided, if the Additional Investor notifies the Company that an Additional Investor Broker (such notification, and the identification of the Additional Investor Broker, to be made on Schedule I hereto on or prior to the execution and delivery of this Agreement) provided services in respect of the Standby Fee, the payment pursuant to this Section 2(h) shall be made to such Additional Investor Broker in consideration of such services rather than to the Additional Investor. To the extent that the Company pays to the Initial Investors a Breakup Fee that is less than $______ per share (the "Lower Share Price"), upon full Breakup Fee to which the Closing DateInitial Investors are entitled under the EPCA, the Purchaser payment to the Additional Investors or Additional Investor Brokers, as the case may be, pursuant to this Section 2(h) shall be granted additional shares adjusted downward proportionately. The Initial Investors' payment pursuant to this Section 2(h) shall be made by wire transfer to each Additional Investor or Additional Investor Broker, as appropriate, at the account set forth on Schedule I hereto, in Dollars and in immediately available funds. The aggregate amount of Common Stock equal Standby Fees and Breakup Fees paid to any Additional Investor or Additional Investor Broker shall not exceed 1.25% of such Additional Investor's Purchase Commitment.
(i) Each of the Initial Investors agrees to use its commercially reasonably efforts to make available to each Additional Investor the registration rights referred to in Section 8(c)(iv) of the EPCA and to assign or otherwise make available to the Aggregate Purchase Price divided by Additional Investors any registration rights (other than demand registration rights) granted to the Lower 2 Share Price, less Initial Investors pursuant to the number of shares of Common Stock purchased by the Purchaser (the "Supplemental Shares")Registration Rights Agreement.
Appears in 1 contract
Samples: Additional Investor Agreement (Appaloosa Management Lp)
