Change of Control Notice. At any time during the period beginning after a Holder’s receipt of a Change of Control Notice or such Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered to such Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later of (A) the date of consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice or (C) the date of the announcement of such Change of Control, such Holder may require, by delivering written notice thereof (“Change of Control Election Notice”) to the Company (which Change of Control Election Notice shall indicate the number of Preferred Shares subject to such election), to have the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration equal to the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the second (2nd) Trading Day after the date of such request and (y) the date of consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders of shares of Common Stock are initially entitled to receive Corporate Event Consideration with respect to the shares of Common Stock of such holder). Any Corporate Event Consideration included in the Rights, if any, pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, required by this Section 6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. Notwithstanding anything to the contrary in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Election Price is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewith, the Preferred Shares submitted by such Holder for exchange or payment, as applicable, under this Section 6(b) may be converted, in whole or in part, by such Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 6. In the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b), such Hxxxxx’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required Premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document.
Appears in 2 contracts
Samples: Securities Purchase Agreement (IMAC Holdings, Inc.), Securities Purchase Agreement (IMAC Holdings, Inc.)
Change of Control Notice. At any time during the period beginning after a Holder’s receipt of If a Change of Control Notice or such Transaction occurs, the Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered shall have the right, at its option, to such Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later of (A) the date of consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice or (C) the date of the announcement of such Change of Control, such Holder may require, by delivering written notice thereof (“Change of Control Election Notice”) to require the Company (which Change of Control Election Notice shall indicate the number of Preferred Shares subject or its successor to such election), to have the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration equal to the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the second (2nd) Trading Day after the date of such request and (y) the date of consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders of shares of Common Stock are initially entitled to receive Corporate Event Consideration with respect to the shares of Common Stock of such holder). Any Corporate Event Consideration included in the Rights, if any, pursuant to redeem this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, required by this Section 6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. Notwithstanding anything to the contrary in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Election Price is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewith, the Preferred Shares submitted by such Holder for exchange or payment, as applicable, under this Section 6(b) may be convertedNote, in whole or in part, for an amount equal to the greater of (I) the product of (A) the quotient obtained by such Holder into Common Stock pursuant to Section 4 or in dividing the event Principal Amount being redeemed by the Conversion Date is after Price in effect at such time as the Holder delivers a Holder Redemption Notice (as defined below) with respect to such principal amount with accrued and unpaid interest being redeemed and (B) the greatest average of the three Daily VWAPs during any three consecutive Trading Day period beginning on the earlier to occur of (1) the consummation of a Change of Control Transaction and (2) the public announcement of such Change of Control Transaction, and ending on the sixth Trading Day immediately following the consummation of such Change of Control, stock or equity interests Control Transaction (the “Parity Redemption Amount”) and (II) (a) 100% of the Successor Entity substantially equivalent outstanding principal balance under this Note being redeemed plus all accrued but unpaid interest thereon (the “Base Redemption Amount”) plus (b) an amount equal to 10% of the Base Redemption Amount (the additional amount under clause (b) being referred to as the “Additional Redemption Amount,” and together with the Base Redemption Amount, the “Par Redemption Amount”, and the greater of the Par Redemption Amount and the Parity Redemption Amount, the “Redemption Amount”). The Holder may exercise its rights by sending written notice to the Company’s shares Company (the “Holder Redemption Notice”) within thirty (30) Trading Days following the Change of Common Stock pursuant Control Transaction. If the Holder elects to Section 6cause the redemption of this Note, then the Company or its successor shall promptly, but in any event no more than twenty-five (25) Trading Days after the date of such election, pay the redemption price to the Holder. In This provision shall similarly apply to successive Change of Control Transactions. If, upon the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b), such Hxxxxx’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability occurrence of a suitable substitute investment opportunity for a Holder. AccordinglyChange of Control Transaction, any Required Premium due under the Holder chooses to redeem less than all of this Section 6(b) is intended by the parties to beNote, and it shall be deemed, a reasonable estimate of not prejudice such Holder’s actual loss of its investment opportunity and not further right to redeem this Note as a penalty. Notwithstanding anything herein to the contrary, in connection with result of any redemption hereunder at a time a Holder is entitled to receive a cash payment under any future Change of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction DocumentControl Transaction.
Appears in 2 contracts
Samples: Senior Note Agreement (Ener1 Inc), Senior Note Agreement (Ener1 Inc)
Change of Control Notice. At any time during the period beginning after a the Holder’s receipt of a Change of Control Notice or such the Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered to such the Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty ten (2010) Trading Days after the later of (A) the date of consummation of such Change of Control or Control, (B) the date of receipt of such Change of Control Notice or (C) the date of the announcement of such Change of Control, such the Holder may require, require the Company to redeem all or any portion of this Note by delivering written notice thereof (“Change of Control Election Redemption Notice”) to the Company (Company, which Change of Control Election Redemption Notice shall indicate the number Conversion Amount the Holder is electing to redeem. The portion of Preferred Shares this Note subject to such election), redemption pursuant to have this Section 5 shall be redeemed by the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration cash at a price equal to the Change greatest of Control Election Price (as defined below), to be satisfied at i) the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later product of (x) the second (2nd) Trading Day after the date Change of such request and Control Redemption Premium multiplied by (y) the Conversion Amount being redeemed, (ii) the product of (x) the Change of Control Redemption Premium multiplied by (y) the product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient determined by dividing (I) the greatest Closing Sale Price of the shares of Common Stock during the period beginning on the date immediately preceding the earlier to occur of (1) the consummation of the applicable Change of Control and (2) the public announcement of such Change of Control and ending on the date the Holder delivers the Change of Control Redemption Notice by (II) the Conversion Price then in effect, and (iii) the product of (x) the Change of Control Redemption Premium multiplied by (y) the product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient of (I) the aggregate cash consideration and the aggregate cash value of any non-cash consideration per share of Common Stock to be paid to the holders of the shares of Common Stock upon consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders non-cash consideration constituting publicly-traded securities shall be valued at the highest of shares the Closing Sale Price of Common Stock are initially entitled to receive Corporate Event Consideration with respect such securities as of the Trading Day immediately prior to the shares of Common Stock consummation of such holderChange of Control, the Closing Sale Price of such securities on the Trading Day immediately following the public announcement of such proposed Change of Control and the Closing Sale Price of such securities on the Trading Day immediately prior to the public announcement of such proposed Change of Control) divided by (II) the Conversion Price then in effect (the “Change of Control Redemption Price”). Any Corporate Event Consideration included in the Rights, if any, pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, Redemptions required by this Section 6(b) 5 shall be made in accordance with the provisions of Section 11 and shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. To the extent redemptions required by this Section 5(b) are deemed or determined by a court of competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 6(b)5, but subject to Section 4(d3(d), until the applicable Change of Control Election Redemption Price (together with any Late Charges thereon) is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewithfull, the Preferred Shares Conversion Amount submitted by such Holder for exchange or payment, as applicable, redemption under this Section 6(b5(b) (together with any Late Charges thereon) may be converted, in whole or in part, by such the Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 63. In the event of the Company’s repayment or exchange, as applicable, redemption of any portion of the Preferred Shares this Note under this Section 6(b5(b), such Hxxxxxthe Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a the Holder. Accordingly, any Required Premium redemption premium due under this Section 6(b5(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such the Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document.
Appears in 1 contract
Samples: Securities Purchase Agreement (Chromocell Therapeutics Corp)
Change of Control Notice. At any time during the period beginning after a Holder’s receipt of a Change of Control Notice or such Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered to such Holder in accordance with the immediately preceding sentence (as applicable) and ending on the later of twenty (20) Trading Days after the later of (A) the date of consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice or (C) the date of the announcement of such Change of ControlNotice, such Holder may require, require the Company to redeem all or any portion of such Holder’s Preferred Shares by delivering written notice thereof (“Change of Control Election Redemption Notice”) to the Company (Company, which Change of Control Election Redemption Notice shall indicate the number of Preferred Shares subject to such election), Holder is electing to have the Company exchange such Holder’s redeem. Each Preferred Shares designated Share subject to redemption pursuant to this Section 6(b) shall be redeemed by the Company in such Change of Control Election Notice for consideration cash at a price equal to the Change greatest of Control Election Price (as defined below), to be satisfied at i) the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later product of (x) the second (2nd) Trading Day after the date of such request and Redemption Premium multiplied by (y) the Conversion Amount being redeemed, (ii) the product of (x) the Conversion Amount being redeemed multiplied by (y) the quotient determined by dividing (I) the greatest Closing Sale Price of the shares of Common Stock during the period beginning on the date immediately preceding the earlier to occur of (1) the consummation of the applicable Change of Control and (2) the public announcement of such Change of Control and ending on the date such Holder delivers the Change of Control Redemption Notice by (II) the Conversion Price then in effect and (iii) the product of (x) the Conversion Amount being redeemed multiplied by (y) the quotient of (A) the aggregate cash consideration and the aggregate cash value of any non-cash consideration per share of Common Stock to be paid to such holders of the shares of Common Stock upon consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders non-cash consideration constituting publicly-traded securities shall be valued at the highest of shares the Closing Sale Price of Common Stock are initially entitled to receive Corporate Event Consideration with respect such securities as of the Trading Day immediately prior to the shares of Common Stock consummation of such holderChange of Control, the Closing Sale Price of such securities on the Trading Day immediately following the public announcement of such proposed Change of Control and the Closing Sale Price of such securities on the Trading Day immediately prior to the public announcement of such proposed Change of Control) divided by (B) the Conversion Price then in effect (the “Change of Control Redemption Price”). Any Corporate Event Consideration included in the Rights, if any, pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, Redemptions required by this Section 6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. To the extent redemptions required by this Section 6(b) are deemed or determined by a court of competent jurisdiction to be prepayments of the Preferred Shares by the Company, such redemptions shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Election Redemption Price (together with any Late Charges thereon) is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewithHolder, the Preferred Shares submitted by such Holder for exchange or payment, as applicable, redemption under this Section 6(b) may be converted, in whole or in part, by such Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 64. In the event of a partial redemption of the Preferred Shares held by a Holder pursuant hereto, the number of Preferred Shares of such Holder redeemed shall be deducted from the Installment Amount(s) of such Holder relating to the applicable Installment Date(s) as set forth in the Change of Control Redemption Notice. In the event of the Company’s repayment or exchange, as applicable, redemption of any of the Preferred Shares under this Section 6(b), such HxxxxxHolder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required Premium redemption premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein The Company shall make payment of the applicable Change of Control Redemption Price concurrently with the consummation of such Change of Control if a Change of Control Redemption Notice is received prior to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option consummation of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount Change of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy Control and within two (2) Trading Days after the Company’s payment obligation under receipt of such other Transaction Documentnotice otherwise (the “Change of Control Redemption Date”). Redemptions required by this Section 6 shall be made in accordance with the provisions of Section 12.
Appears in 1 contract
Change of Control Notice. At any time during the period beginning after a the Holder’s receipt of a Change of Control Notice or such the delivery by the Holder becoming to the Company of written notice of a Change of Control if the Holder has become aware of a Change of Control if a and the Company has not provided the Change of Control Notice is not delivered to such the Holder in accordance with the immediately preceding sentence (as applicablea “Holder Notice”) and ending on the later of twenty (20) Trading Days business days after the later of (A) the date of consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice or Holder Notice, the Holder may require the Company to redeem or convert (C) at the date election of the announcement Holder) all or any portion of such this Note (up to the Maximum Change of Control, such Holder may require, Control Conversion Amount) by delivering written notice thereof (“Change of Control Election Redemption Notice”) to the Company (Company, which Change of Control Election Redemption Notice shall indicate the number amount of Preferred Shares subject outstanding principal (plus all accrued and unpaid interest) under the Note that the Holder is electing to such election), redeem and/or convert (up to have the Company exchange such Holder’s Preferred Shares designated in such Maximum Change of Control Election Notice for consideration equal to the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the second (2nd) Trading Day after the date of such request and (y) the date of consummation of such Change of Control (or, Conversion Amount with respect to any Rightconversion), if applicable, such later time that holders as the case may be. The portion of shares of Common Stock are initially entitled this Note subject to receive Corporate Event Consideration with respect to the shares of Common Stock of such holder). Any Corporate Event Consideration included in the Rights, if any, redemption/conversion pursuant to this Section 6(b4(b) is pari passu shall be redeemed by the Company at a price equal to the principal amount and accrued and unpaid interest thereon and on the interest related thereto (i) in cash, or (ii) at the election of the Holder, subject to the conversion provisions herein, in Common Stock in accordance with Section 5, provided that the Corporate Event Consideration amount to be paid to holders of shares of Common Stock and the Company converted under this clause (ii) shall not permit a payment of any Corporate Event Consideration to exceed the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, required by this Section 6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. Notwithstanding anything to the contrary in this Section 6(b), but subject to Section 4(d), until the applicable Maximum Change of Control Election Price is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewith, the Preferred Shares submitted by such Holder for exchange or payment, as applicable, under this Section 6(b) may be converted, in whole or in part, by such Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 6. In the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b), such Hxxxxx’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required Premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document.Amount (“
Appears in 1 contract
Samples: Satisfaction and Release Agreement (Argos Therapeutics Inc)
Change of Control Notice. At any time during the period beginning after a Holder’s receipt of a Change of Control Notice or such Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered to such Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later of (A) the date of consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice or (C) the date of the announcement of such Change of Control, such Holder may require, by delivering written notice thereof (“Change of Control Election Notice”) to the Company (which Change of Control Election Notice shall indicate the number of Preferred Shares subject to such election), to have the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration equal to the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election PricePrice (as determined with the fair market value of the aggregate number of Successor Shares (as defined below) issuable upon conversion of the Rights to be determined in increments of 10% (or such greater percentage as the applicable Holder may notify the Company from time to time) of the portion of the Change of Control Election Price attributable to such Successor Shares (the “Successor Share Value Increment”), with the aggregate number of Successor Shares issuable upon exercise of the Rights with respect to the first Successor Share Value Increment determined based on 70% of the VWAP of the Successor Shares on the date the Rights are issued and on each of the nine (9) subsequent Trading Days, in each case, the aggregate number of additional Successor Shares issuable upon exercise of the Rights shall be determined based upon a Successor Share Value Increment at 70% of the VWAP of the Successor Shares in effect for such corresponding Trading Day (such ten (10) Trading Day period commencing on, and including, the date the Rights are issued, the “Rights Measuring Period”)), or (II) in cash; provided, that the Company shall not consummate a Change of Control if the Corporate Event Consideration includes capital stock or other equity interest (the “Successor Shares”) either in an entity that is not listed on an Eligible Market or an entity in which the daily share volume for the applicable Successor Shares for each of the twenty (20) Trading Days prior to the date of consummation of such Change of Control is less than the aggregate number of Successor Shares issuable to all Holders upon conversion in full of the applicable Rights (without regard to any limitations on conversion therein, assuming the exercise in full of the Rights on the date of issuance of the Rights and assuming the VWAP of the Successor Shares for each Trading Day in the Rights Measuring Period is the VWAP on the Trading Day ended immediately prior to the time of consummation of the Change of Control). The Company shall give each Holder written notice of each Consideration Election at least ten twenty (1020) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the second (2nd) Trading Day after the date of such request and (y) the date of consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders of shares of Common Stock are initially entitled to receive Corporate Event Consideration with respect to the shares of Common Stock of such holder). Any Corporate Event Consideration included in the Rights, if any, pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, required by this Section 6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. Notwithstanding anything to the contrary in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Election Price is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewith, the Preferred Shares submitted by such Holder for exchange or payment, as applicable, under this Section 6(b) may be converted, in whole or in part, by such Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 66(a). In the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b), such HxxxxxXxxxxx’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required Premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document.
Appears in 1 contract
Samples: Securities Purchase Agreement (Phoenix Biotech Acquisition Corp.)
Change of Control Notice. At any time during the period beginning after a the Holder’s receipt of a Change of Control Notice or such the Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered to such the Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty fifteen (2015) Trading Days days after the later of (A) the date of consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice or (C) the date of the announcement of such Change of Control, such the Holder may require, require the Company to redeem all or any portion of this Note by delivering written notice thereof (“Change of Control Election Redemption Notice”) to the Company (Company, which Change of Control Election Redemption Notice shall indicate the number Conversion Amount the Holder is electing to redeem. The portion of Preferred Shares this Note subject to such election), redemption pursuant to have this Section 5 shall be redeemed by the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration cash at a price equal to the greatest of (i) the product of (w) the Change of Control Election Price Redemption Premium multiplied by (as defined below)y) the Conversion Amount being redeemed, to be satisfied at (ii) the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later product of (x) the second (2nd) Trading Day after the date Change of such request and Control Redemption Premium multiplied by (y) the product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient determined by dividing (I) the greatest Closing Sale Price of the shares of Common Stock during the period beginning on the date immediately preceding the earlier to occur of (1) the consummation of the applicable Change of Control and (2) the public announcement of such Change of Control and ending on the date the Holder delivers the Change of Control Redemption Notice by (II) the Conversion Price then in effect and (iii) the product of (y) the Change of Control Redemption Premium multiplied by (z) the product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient of (I) the aggregate cash consideration and the aggregate cash value of any non-cash consideration per share of Common Stock to be paid to the holders of the shares of Common Stock upon consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders non-cash consideration constituting publicly-traded securities shall be valued at the highest of shares the Closing Sale Price of Common Stock are initially entitled to receive Corporate Event Consideration with respect such securities as of the Trading Day immediately prior to the shares of Common Stock consummation of such holderChange of Control, the Closing Sale Price of such securities on the Trading Day immediately following the public announcement of such proposed Change of Control and the Closing Sale Price of such securities on the Trading Day immediately prior to the public announcement of such proposed Change of Control) divided by (II) the Conversion Price then in effect (the “Change of Control Redemption Price”). Any Corporate Event Consideration included in the Rights, if any, pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, Redemptions required by this Section 6(b) 5 shall be made in accordance with the provisions of Section 12 and shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. To the extent redemptions required by this Section 5(b) are deemed or determined by a court of competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 6(b)5, but subject to Section 4(d3(d), until the applicable Change of Control Election Redemption Price is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewithfull, the Preferred Shares Conversion Amount submitted by such Holder for exchange or payment, as applicable, redemption under this Section 6(b5(b) may be converted, in whole or in part, by such the Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 63. In the event of the Company’s repayment or exchange, as applicable, redemption of any portion of the Preferred Shares this Note under this Section 6(b5(b), such Hxxxxxthe Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a the Holder. Accordingly, any Required Premium redemption premium due under this Section 6(b5(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such the Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document.
Appears in 1 contract
Samples: Securities Purchase Agreement (Adagio Medical Holdings, Inc.)
Change of Control Notice. At any time during On or before the period beginning after a Holder’s receipt twentieth (20th) Business Day prior to the effective date of a Change of Control Notice or such Holder becoming aware after the Change of Control Trigger Date (or, if later, promptly after the Company discovers that a Change of Control if may occur), the Company will send to each Holder a Change of Control Notice is not delivered to such Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later of (A) the date of consummation notice of such Change of Control or (B) a “Change of Control Notice”). Such Change of Control Notice must state: briefly, the events causing such Change of Control; the expected effective date of such Change of Control; the procedures that a Holder must follow to require the Company to repurchase its Convertible Preferred Stock pursuant to this Section 8, including the deadline for exercising the Change of Control Repurchase Right and the procedures for submitting and withdrawing a Change of Control Repurchase Notice; the Change of Control Repurchase Date for such Change of Control; the Change of Control Repurchase Price per share of Convertible Preferred Stock; the Conversion Price in effect on the date of receipt of such Change of Control Notice or (C) and a description and quantification of any adjustments to the date of the announcement of Conversion Price that may result from such Change of Control, such Holder may require, by delivering written notice thereof (“; that shares of Convertible Preferred Stock for which a Change of Control Election Notice”) Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Company (which for the Holder thereof to be entitled to receive the Change of Control Election Notice shall indicate the number Repurchase Price; that shares of Convertible Preferred Shares Stock that are subject to such election), to have the Company exchange such Holder’s Preferred Shares designated in a Change of Control Repurchase Notice that has been duly tendered may be converted only if such Change of Control Election Repurchase Notice for consideration equal is withdrawn in accordance with this Certificate of US3707275 Designations; and that the Holder’s Convertible Preferred Stock may instead be converted in an Optional Conversion pursuant to Section 10(b) at any time before the Close of Business on the Business Day immediately before the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of Repurchase Date for such Change of Control. Payment of such amounts or delivery of Procedures to Exercise the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the second (2nd) Trading Day after the date of such request and (y) the date of consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders of shares of Common Stock are initially entitled to receive Corporate Event Consideration with respect to the shares of Common Stock of such holder). Any Corporate Event Consideration included in the Rights, if any, pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Repurchase Right to the Holders in accordance herewith. Cash payments, if any, required by this Section 6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. Notwithstanding anything to the contrary in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Election Price is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewith, the Preferred Shares submitted by such Holder for exchange or payment, as applicable, under this Section 6(b) may be converted, in whole or in part, by such Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 6. In the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b), such Hxxxxx’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required Premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document.
Appears in 1 contract
Change of Control Notice. At any time during On or before the period beginning after a Holder’s receipt tenth (10th) Business Day before the effective date (or anticipated effective date) of a Change of Control Notice or such Holder becoming aware of (or, if later, promptly after the Company discovers that a Change of Control if may occur), the Company will send to each Holder a Change of Control Notice is not delivered to such Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later of (A) the date of consummation notice of such Change of Control (either concurrently with or after the public announcement of the same information) (Ba “Change of Control Notice”). Such Change of Control Notice must state:
(i) briefly, the events causing such Change of Control;
(ii) the expected effective date of receipt such Change of Control;
(iii) the procedures that a Holder must follow to require the Company to repurchase its Convertible Preferred Stock pursuant to this Section 8, including the deadline for exercising the Change of Control Repurchase Right and the procedures for submitting and withdrawing a Change of Control Repurchase Notice;
(iv) the Change of Control Repurchase Date for such Change of Control;
(v) the Change of Control Repurchase Price per share of Convertible Preferred Stock;
(vi) the Conversion Rate in effect on the date of such Change of Control Notice or (C) and a description and quantification of any adjustments to the date of the announcement of Conversion Rate that may result from such Change of Control, such Holder may require, by delivering written notice thereof ;
(“vii) that shares of Convertible Preferred Stock for which a Change of Control Election Notice”) Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Company (which for the Holder thereof to be entitled to receive the Change of Control Election Notice shall indicate the number Repurchase Price; and
(viii) that shares of Convertible Preferred Shares Stock that are subject to such election), to have the Company exchange such Holder’s Preferred Shares designated in a Change of Control Repurchase Notice that has been duly tendered may be converted only if such Change of Control Election Repurchase Notice for consideration equal to the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the second (2nd) Trading Day after the date of such request and (y) the date of consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders of shares of Common Stock are initially entitled to receive Corporate Event Consideration with respect to the shares of Common Stock of such holder). Any Corporate Event Consideration included in the Rights, if any, pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders withdrawn in accordance herewith. Cash payments, if any, required by with this Section 6(b) shall have priority to payments to all other stockholders Certificate of the Company in connection with such Change of Control. Notwithstanding anything to the contrary in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Election Price is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewith, the Preferred Shares submitted by such Holder for exchange or payment, as applicable, under this Section 6(b) may be converted, in whole or in part, by such Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 6. In the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b), such Hxxxxx’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required Premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction DocumentDesignations.
Appears in 1 contract
Samples: Investment Agreement (Rhythm Pharmaceuticals, Inc.)
Change of Control Notice. At any time during Within 15 Business Days after the period beginning after a Holder’s receipt occurrence of a Change of Control Notice or such Holder becoming aware Triggering Event, the Company shall (i) provide a written notice of a Change of Control Triggering Event by registered mail to the Trustee which shall provide a copy of such notice to Holders in the manner specified herein and to beneficial owners, to the extent required by applicable law and (ii) if the Trustee shall not have otherwise done so, cause copy of such notice to be published in a daily newspaper of national circulation in the United States. The Trustee shall be under no obligation to ascertain the occurrence of a Change of Control Triggering Event or to provide notice with respect thereto other than as provided above upon receipt of the written notice of a Change of Control Triggering Event from the Company and the Guarantors. The Trustee shall have the right conclusively to assume, in the absence of written notice to the contrary from the Company and the Guarantors, that no Change of Control Triggering Event has occurred. The notice shall include a form of Change of Control Purchase Notice is not delivered to such Holder in accordance with the immediately preceding sentence (as applicabledefined in Section 3.9(c)) to be completed by the Holder and ending on twenty shall state:
(201) Trading Days after That the later offer to repurchase Securities is being made pursuant to a covenant in the Indenture and that all of the BUCS validly tendered will be accepted for payment;
(A2) the date of consummation of such by which the Change of Control or Purchase Notice pursuant to this Section 3.9 must be given;
(B3) the date of receipt of such anticipated Change of Control Notice or Purchase Date;
(C4) the anticipated Change of Control Purchase Price;
(5) the name and address of each Paying Agent and Exchange Agent referred to in Section 10.02;
(6) the Exchange Rate then in effect, including any adjustments thereto since the date of the announcement issuance of such Change of Control, such Holder may require, by delivering written notice thereof the Securities;
(“7) that Securities as to which a Change of Control Election Notice”) to the Company (which Change of Control Election Purchase Notice shall indicate the number of Preferred Shares subject to such election), to have the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration equal to the Change of Control Election Price (as defined below), to has been provided may be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the second (2nd) Trading Day after the date of such request and (y) the date of consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders of shares of Common Stock are initially entitled to receive Corporate Event Consideration with respect to the shares of Common Stock of such holder). Any Corporate Event Consideration included in the Rights, if any, exchanged pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders Article Eleven if they are otherwise exchangeable in accordance herewith. Cash payments, with Article Eleven only if any, required by this Section 6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. Notwithstanding anything to the contrary in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Election Price is paid in full to the applicable Holder in cash or Corporate Event Consideration Purchase Notice, once provided, has been withdrawn in accordance herewith, with the Preferred Shares submitted by terms hereof;
(8) that Securities must be surrendered to any Paying Agent at the office of such Paying Agent specified in such notice of Change of Control Triggering Event to collect payment;
(9) that the Change of Control Purchase Price for any Security as to which a Change of Control Purchase Notice has been duly given and not withdrawn will be paid promptly following the later of the dates of the Change of Control Purchase Date and the time of surrender of such Security as described in clause (8) above;
(10) the procedures the Holder for exchange or payment, as applicable, must follow to exercise rights under this Section 6(b3.9 and a summary description of those rights;
(11) in summary form, the exchange rights of the Securities;
(12) the CUSIP number or ISIN number, as the case may be convertedbe, in whole or in part, by such Holder into Common Stock pursuant of the Securities;
(13) that interest on Securities as to Section 4 or in the event the Conversion Date is which a Change of Control Purchase Notice has been duly provided and not withdrawn will cease to accrue on and after the consummation of such Change of Control, stock or equity interests Control Purchase Date; and
(14) the procedures for withdrawing a Change of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 6. In the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b), such Hxxxxx’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required Premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction DocumentControl Purchase Notice.
Appears in 1 contract
Samples: Indenture (Feg Holdings Inc)
Change of Control Notice. At any time during the period beginning after a the Holder’s receipt of a Change of Control Notice or such the Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered to such the Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later of (A) the date of consummation of such Change of Control or (B) the date of receipt of such Change of Control Notice or (C) the date of the announcement of such Change of Control, such the Holder may require, require the Company to redeem all or any portion of this Note by delivering written notice thereof (“Change of Control Election Redemption Notice”) to the Company (Company, which Change of Control Election Redemption Notice shall indicate the number Conversion Amount the Holder is electing to redeem. The portion of Preferred Shares this Note subject to such election), redemption pursuant to have this Section 5 shall be redeemed by the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration cash at a price equal to the greatest of (i) the product of (w) the Change of Control Election Price Redemption Premium multiplied by (as defined below)y) the Conversion Amount being redeemed, to be satisfied at (ii) the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price, or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later product of (x) the second (2nd) Trading Day after the date Change of such request and Control Redemption Premium multiplied by (y) the product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient determined by dividing (I) the greatest Closing Sale Price of the shares of Common Stock during the period beginning on the date immediately preceding the earlier to occur of (1) the consummation of the applicable Change of Control and (2) the public announcement of such Change of Control and ending on the date the Holder delivers the Change of Control Redemption Notice by (II) the Conversion Price then in effect and (iii) the product of (y) the Change of Control Redemption Premium multiplied by (z) the product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient of (I) the aggregate cash consideration and the aggregate cash value of any non-cash consideration per share of Common Stock to be paid to the holders of the shares of Common Stock upon consummation of such Change of Control (or, with respect to any Right, if applicable, such later time that holders non-cash consideration constituting publicly-traded securities shall be valued at the highest of shares the Closing Sale Price of Common Stock are initially entitled to receive Corporate Event Consideration with respect such securities as of the Trading Day immediately prior to the shares of Common Stock consummation of such holderChange of Control, the Closing Sale Price of such securities on the Trading Day immediately following the public announcement of such proposed Change of Control and the Closing Sale Price of such securities on the Trading Day immediately prior to the public announcement of such proposed Change of Control) divided by (II) the Conversion Price then in effect (the “Change of Control Redemption Price”). Any Corporate Event Consideration included in the Rights, if any, pursuant to this Section 6(b) is pari passu with the Corporate Event Consideration to be paid to holders of shares of Common Stock and the Company shall not permit a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, Redemptions required by this Section 6(b) 5 shall be made in accordance with the provisions of Section 12 and shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. To the extent redemptions required by this Section 5(a) are deemed or determined by a court of competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 6(b)5, but subject to Section 4(d3(d), until the applicable Change of Control Election Redemption Price (together with any Late Charges thereon) is paid in full to the applicable Holder in cash or Corporate Event Consideration in accordance herewithfull, the Preferred Shares Conversion Amount submitted by such Holder for exchange or payment, as applicable, redemption under this Section 6(b5(a) (together with any Late Charges thereon) may be converted, in whole or in part, by such the Holder into Common Stock pursuant to Section 4 or 3. In the event of a partial redemption of this Note pursuant hereto, the Principal amount redeemed shall be deducted from the Installment Amount(s) relating to the applicable Installment Date(s) as set forth in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 6Control Redemption Notice. In the event of the Company’s repayment or exchange, as applicable, redemption of any portion of the Preferred Shares this Note under this Section 6(b5(a), such Hxxxxxthe Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a the Holder. Accordingly, any Required Premium redemption premium due under this Section 6(b5(a) is intended by the parties to be, and shall be deemed, a reasonable estimate of such the Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document.
Appears in 1 contract
Samples: Securities Purchase Agreement (BOQI International Medical, Inc.)
Change of Control Notice. At any time during On or before the period beginning after a Holder’s receipt of twentieth (20th) Business Day prior to the date on which the Company anticipates consummating a Change of Control Notice or such Holder becoming aware of (or, if later, promptly after the Company discovers that a Change of Control if may occur), a written notice (a “Change of Control Notice”) shall be sent by or on behalf of the Company to each Holder at its address as it appears in the records of the Company. The Change of Control Notice is not delivered to such Holder in accordance with shall include: (i) a description of the immediately preceding sentence material terms and conditions of the Change of Control; (as applicable) and ending on twenty (20) Trading Days after the later of (Aii) the date of consummation of such on which the Change of Control is anticipated to be consummated; (iii) whether the Company is exercising its right under Section 6(a)(i) to redeem any or all of the outstanding shares of Series A-2 Preferred Stock and, if so, the number of shares of Series A-2 Preferred Stock to be redeemed from such Holder; (Biii) the date place at which shares of receipt of such Change of Control Notice or Series A-2 Preferred Stock shall be redeemed; and (Civ) the date of applicable Redemption Price. If, or to the announcement of such extent that, the Company (or its successor or the acquiring or surviving Person in a Change of Control) is not exercising its rights pursuant to Section 6(a)(i) to redeem the outstanding shares of Series A-2 Preferred Stock, the Holder may exercise its right pursuant to Section 6(a)(ii) to require the Company (or its successor or the acquiring or surviving Person in a Change of Control) to redeem any or all of the outstanding shares of Series A-2 Preferred Stock owned by such Holder may require, by delivering a written notice thereof to the Company (“or its successor or the acquiring or surviving Person in a Change of Control Control) (the “Election Notice”) stating that the Holder is exercising its right to require the Company (which or its successor or the acquiring or surviving Person in a Change of Control Control) to redeem any or all of its outstanding shares of Series A-2 Preferred Stock and including wire transfer instructions for the payment of the Redemption Price, which Election Notice shall indicate be irrevocable so long as the number economic terms and material other terms and conditions of Preferred Shares subject to such election), to have the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration equal to the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation remain unchanged from those set forth in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Notice. Such Election Price, Notice must be delivered on or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the second five (2nd5) Trading Day after Business Days prior to the date on which the Company anticipates consummating a Change of such request Control (as specified in the Change of Control Notice) and (y) five (5) Business Days after the date Holder’s receipt of consummation of such the Change of Control Notice (orsuch period, with respect to any Right, if applicable, such later time that holders of shares of Common Stock are initially entitled to receive Corporate Event Consideration with respect to the shares of Common Stock of such holder“Election Period”). Any Corporate Event Consideration included In the event a Holder timely receives a Change of Control Notice in the Rights, if any, pursuant to accordance with this Section 6(b) is pari passu with and fails to deliver the Corporate Event Consideration Election Notice within the applicable Election Period, such Holder shall be deemed to be paid have irrevocably waived its right to holders of shares of Common Stock and require the Company shall not permit (or its successor or the acquiring or surviving Person in a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, required by this Section 6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. Notwithstanding anything ) to redeem any or all of its outstanding shares of Series A-2 Preferred Stock under this Section 6; provided, that if there is any change to the contrary economic terms or material other terms and conditions of the Change of Control as compared to those set forth in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Notice, the Company shall deliver another Change of Control Notice and commence a new Election Price is paid in full to the applicable Holder in cash or Corporate Event Consideration Period with respect thereto in accordance herewith, the Preferred Shares submitted by such Holder for exchange or payment, as applicable, under with this Section 6(b) may be converted, in whole or in part, by such Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 6. In the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b6 (which shall apply mutatis mutandis), such Hxxxxx’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required Premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document.
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Change of Control Notice. At any time during On or before the period beginning after a Holder’s receipt of twentieth (20th) Business Day prior to the date on which the Company anticipates consummating a Change of Control Notice or such Holder becoming aware of (or, if later, promptly after the Company discovers that a Change of Control if may occur), a written notice (a “Change of Control Notice”) shall be sent by or on behalf of the Company to each Holder at its address as it appears in the records of the Company. The Change of Control Notice is not delivered to such Holder in accordance with shall include: (i) a description of the immediately preceding sentence material terms and conditions of the Change of Control; (as applicable) and ending on twenty (20) Trading Days after the later of (Aii) the date of consummation of such on which the Change of Control is anticipated to be consummated; (iii) whether the Company is exercising its right under Section 6(a)(i) to redeem any or all of the outstanding shares of Series A-1 Preferred Stock and, if so, the number of shares of Series A-1 Preferred Stock to be redeemed from such Holder; (Biii) the date place at which shares of receipt of such Change of Control Notice or Series A-1 Preferred Stock shall be redeemed; and (Civ) the date of applicable Redemption Price. If, or to the announcement of such extent that, the Company (or its successor or the acquiring or surviving Person in a Change of Control) is not exercising its rights pursuant to Section 6(a)(i) to redeem the outstanding shares of Series A-1 Preferred Stock, the Holder may exercise its right pursuant to Section 6(a)(ii) to require the Company (or its successor or the acquiring or surviving Person in a Change of Control) to redeem any or all of the outstanding shares of Series A-1 Preferred Stock owned by such Holder may require, by delivering a written notice thereof to the Company (“or its successor or the acquiring or surviving Person in a Change of Control Control) (the “Election Notice”) stating that the Holder is exercising its right to require the Company (which or its successor or the acquiring or surviving Person in a Change of Control Control) to redeem any or all of its outstanding shares of Series A-1 Preferred Stock and including wire transfer instructions for the payment of the Redemption Price, which Election Notice shall indicate be irrevocable so long as the number economic terms and material other terms and conditions of Preferred Shares subject to such election), to have the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration equal to the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “Consideration Election”), in either (I) rights (with a beneficial ownership limitation remain unchanged from those set forth in the form of Section 4(d) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Notice. Such Election Price, Notice must be delivered on or (II) in cash. The Company shall give each Holder written notice of each Consideration Election at least ten (10) Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or delivery of the Rights, as applicable, shall be made by the Company (or at the Company’s direction) to each Holder on the later of (x) the second five (2nd5) Trading Day after Business Days prior to the date on which the Company anticipates consummating a Change of such request Control (as specified in the Change of Control Notice) and (y) five (5) Business Days after the date Holder’s receipt of consummation of such the Change of Control Notice (orsuch period, with respect to any Right, if applicable, such later time that holders of shares of Common Stock are initially entitled to receive Corporate Event Consideration with respect to the shares of Common Stock of such holder“Election Period”). Any Corporate Event Consideration included In the event a Holder timely receives a Change of Control Notice in the Rights, if any, pursuant to accordance with this Section 6(b) is pari passu with and fails to deliver the Corporate Event Consideration Election Notice within the applicable Election Period, such Holder shall be deemed to be paid have irrevocably waived its right to holders of shares of Common Stock and require the Company shall not permit (or its successor or the acquiring or surviving Person in a payment of any Corporate Event Consideration to the holders of shares of Common Stock without on or prior to such time delivering the Right to the Holders in accordance herewith. Cash payments, if any, required by this Section 6(b) shall have priority to payments to all other stockholders of the Company in connection with such Change of Control. Notwithstanding anything ) to redeem any or all of its outstanding shares of Series A-1 Preferred Stock under this Section 6; provided, that if there is any change to the contrary economic terms or material other terms and conditions of the Change of Control as compared to those set forth in this Section 6(b), but subject to Section 4(d), until the applicable Change of Control Notice, the Company shall deliver another Change of Control Notice and commence a new Election Price is paid in full to the applicable Holder in cash or Corporate Event Consideration Period with respect thereto in accordance herewith, the Preferred Shares submitted by such Holder for exchange or payment, as applicable, under with this Section 6(b) may be converted, in whole or in part, by such Holder into Common Stock pursuant to Section 4 or in the event the Conversion Date is after the consummation of such Change of Control, stock or equity interests of the Successor Entity substantially equivalent to the Company’s shares of Common Stock pursuant to Section 6. In the event of the Company’s repayment or exchange, as applicable, of any of the Preferred Shares under this Section 6(b6 (which shall apply mutatis mutandis), such Hxxxxx’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for a Holder. Accordingly, any Required Premium due under this Section 6(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of such Holder’s actual loss of its investment opportunity and not as a penalty. Notwithstanding anything herein to the contrary, in connection with any redemption hereunder at a time a Holder is entitled to receive a cash payment under any of the other Transaction Documents, at the option of such Holder delivered in writing to the Company, the applicable redemption price hereunder shall be increased by the amount of such cash payment owed to such Holder under such other Transaction Document and, upon payment in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document.
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