Contingent Value Rights. 2.1 CVRs.
(a) As provided in the Merger Agreement:
(i) effective as of the Acceptance Time, Merger Sub will accept for payment and pay the Consideration, including one CVR, for each share of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer; and
(ii) effective as of the Effective Time, (A) each Share shall be converted into the right to receive the Consideration, which includes one CVR, and (B) each Company Warrant that is assumed and converted pursuant to Section 5.2(c) of the Merger Agreement shall be treated in accordance with its terms.
(b) The initial Holders shall be determined pursuant to the terms of the Merger Agreement and this Agreement, and a list of the initial Holders shall be furnished to the Rights Agent by or on behalf of Parent in accordance with Section 4.1 hereof.
Contingent Value Rights. 2.1 Authority; Issuance of CVRs; Appointment of Rights Agent.
(a) The Company has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any violation of any provision of the Certificate of Incorporation or By-laws of the Company, or (ii) result in any violation of any loan or credit agreement, note, mortgage, indenture, lease, or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Company or its properties or assets which violation, in the case of clause (ii), individually or in the aggregate, would reasonably be expected to be material to the Company. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body is required by or with respect to the Company in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby.
(b) One CVR will be issued with respect to each share of Common Stock that is outstanding as of 5:01 p.m. Eastern Time on the Record Date.
(c) The Company hereby appoints Computershare Trust Company N.A. as the Rights Agent to act as rights agent for the Company in accordance with the instructions hereinafter set forth in this Agreement, and Computershare Trust Company N.A. hereby accepts such appointment.
Contingent Value Rights. In the event the Company converts (regardless of whether any such shares are actually converted pursuant to Section 13 of the Articles Supplementary) the shares of Series C Preferred Stock into Common Stock pursuant to the terms of the Stock Purchase Agreement and the Articles, then:
(a) On the Test Date, the Company shall calculate the VWAP per Common Share for the period covering the 90th through the 120th trading days after the Election Date (as defined in the Articles) (the “CVR Period VWAP”).
(b) Within five (5) Business Days following the Test Date, the Company shall pay to the Holder, in immediately available funds to an account designated in writing by such Holder, the amount, if any, with respect to each share of the Common Stock into which shares of Series C Preferred Stock were converted (regardless of whether any such shares are actually converted pursuant to Section 13 of the Articles Supplementary) (“Common Shares”) held by such Holder (and/or its assignees) on the Test Date equal to: (i) the number of Common Shares held by such Investor at the close of business on the Test Date multiplied by (ii) the amount (the “Settlement Amount”), which shall not be less than zero nor greater than $2.00, equal to the difference between (A) the Conversion Price (as defined in the Articles) (as may be adjusted from time to time pursuant to Section 7 of the Articles) and (B) the CVR Period VWAP.
(c) If the number of shares of Common Stock is adjusted upon the occurrence of any event that would have resulted in the adjustment of the Fixed Conversion Price (as defined in the Articles Supplementary), the number of Contingent Value Rights shall be adjusted proportionately.
Contingent Value Rights. Stockholder acknowledges that, as a portion of the Merger Consideration to be received in the Merger, Stockholder and other holders of the Company’s capital stock will be entitled to receive Common Stock Contingent Value Rights and/or Preferred Stock Contingent Value Rights, the value of which rights depends in substantial part on the Net Revenue earned by the Company in the operation of its Business during the Earnout Period from January 1, 2005 through December 31, 2005 (as such terms are defined in the CVR Agreement (as defined in the Merger Agreement)), as set forth more specifically in the CVR Agreement. Stockholder hereby generally, irrevocably, unconditionally and completely agrees (i) that the Company and Parent (as the controlling stockholder of the Company as of the Effective Time) and each of the other Releasees shall be entitled to operate the Business of the Company after the Effective Time as it determines in its sole and absolute discretion, and shall have no obligation to operate the Business in any manner that would maximize, maintain or protect the value of the Common Stock Contingent Value Rights and the Preferred Stock Contingent Value Rights, (ii) the Common Stock Contingent Value Rights and the Preferred Stock Contingent Value Rights represent contractual obligations of Parent, and none of Parent, the Company, or any other Releasee owes any fiduciary duty of any type (including, without limitation, any duty of loyalty or care) to any holder of Common Stock Contingent Value Rights and Preferred Stock Contingent Value Rights, (iii) Stockholder shall be prohibited from asserting any dispute, right, claim, action, cause of action, controversy or remedy of any kind and nature against any of the Releasees resulting from the operation of the business of the Company after the Effective Time or resulting from any allegation of breach of fiduciary duty of any nature, other than claims for fraud or intentional misconduct. STOCKHOLDER ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE FOR FRAUD OR INTENTIONAL MISCONDUCT UNDER THE PRECEDING SENTENCE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO FRAUD OR INTENTIONAL MISCONDUCT UNDER THE PRECEDING SENTENCE. STOCKHOLDER CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY ...
Contingent Value Rights. Parent shall have executed and delivered to the Company the CVR Agreement. No filings and/or notices shall be required to be made and no consents, registrations, approvals, permits or authorizations shall be required to be obtained under any federal or state securities or “blue sky” laws by the Company, Parent or Merger Sub with respect to the Contingent Value Rights that have not been made or obtained.
Contingent Value Rights. (a) On the Test Date, the Company shall calculate the VWAP per Common Share for the period covering the 30th through the 60th trading days after the Closing (the “CVR Period VWAP”).
(b) Within five (5) Business Days following the Test Date, the Company shall pay to the Holder, in immediately available funds to an account designated in writing by such Holder, an amount equal to (a) the number of Contingent Value Rights held by the Holder on the Test Date multiplied by (ii) the amount (the “Settlement Amount”), which shall not be less than zero nor greater than $1.50, equal to the difference between (A) the Purchase Price and (B) the CVR Period VWAP.
(c) If the number of shares of Common Stock is adjusted upon the occurrence of any event that would have resulted in the adjustment of the Fixed Conversion Price (as defined in the Articles Supplementary), the number of Contingent Value Rights shall be adjusted proportionately.
Contingent Value Rights. Montage (and, if applicable, the Rights Agent) shall have executed and delivered to Marigold (and, if applicable, the Rights Agent) the CVR Agreement in accordance with Section 6.19(b)(iv).
Contingent Value Rights. 1Holders of CVRs; Appointment of Rights Agent.
Contingent Value Rights. The Issuers promise to pay the Contingent Value Rights Payment to Purchasers. The Issuers shall pay the CVR Amount plus unpaid interest earned thereon in cash on the Maturity Date, subject to the Conversion Right. Commencing on the date of the occurrence of a Fundamental Transaction, interest will accrue on the CVR Amount at the interest rate applicable to BL FF First Out Obligations, and the Issuers shall pay all such accrued interest in cash on the Maturity Date.
Contingent Value Rights. (a) If the conditions to distribution under Section 5.5 of the Plan of Reorganization have been satisfied, as of the Effective Date, each holder of Old Common Stock on the Effective Date shall receive one right (a “Contingent Value Right” or “CVR”, and such recipient of a CVR, and any Permitted Transferee thereof, a “CVR Holder”) for each share of Old Common Stock held by such Person on the Effective Date. Each share of Old Common Stock shall be deemed to have been surrendered and cancelled on the Effective Date in accordance with the Plan of Reorganization.
