Convertibility. 2.11.1 By giving a notice on a Business Day (a “Conversion Notice”) to the other party hereto at any time prior to the close of business on the Business Day immediately preceding the Maturity Date, a party hereto may elect to convert all or any part of the unpaid principal amount of the Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest thereon into Shares at the Conversion Price, the number of which Shares shall be determined by dividing the amount to be so converted (including, subject to the Cash Interest Option, any accrued and unpaid interest thereon) by the Conversion Price. No fractional Share shall be issued upon conversion of any portion of the Subordinated Loan and accrued and unpaid interest thereon. Any fraction of Share shall be paid in cash by the Borrower on the Conversion Date as indicated hereinafter. 2.11.2 Until the first conversion of any unpaid principal amount of the Subordinated Loan and accrued and unpaid interest thereon into Shares, the Lender shall have under this Section 2.11 none of the rights or obligations of a shareholder of the Borrower. Furthermore, no Conversion Notice may be sent by the Lender to the Borrower once the Borrower has sent to the Lender an Optional Prepayment Notice. 2.11.3 The Borrower shall reserve (if at any time its articles limit the number of authorized Shares) and at all times keep available, solely for the purpose of delivery upon conversion of the Subordinated Loan as provided in this Section 2.11, such number of Shares as would then be deliverable at the Conversion Price upon a conversion of the Subordinated Loan and accrued and unpaid interest thereon, which Shares would be upon delivery duly and validly issued and fully paid and non-assessable. If any such Shares require registration with or approval of any governmental authority under any applicable law or listing upon any national securities exchange before such Shares may be issued and delivered upon conversion, the Borrower shall use its best efforts to cause such Share to be duly registered, approved and listed, as the case may be. 2.11.4 Each Conversion Notice shall specify (a) the unpaid principal amount of the Subordinated Loan to be converted, (b) the amount of accrued and unpaid interest payable thereon up to and including the Conversion Date (subject to the exercise by the Borrower of the Cash Interest Option) to be converted, (c) the Conversion Price, (d) the number of Shares to be issued and delivered upon conversion and (e) the effective date of the conversion, which shall be no later than 10 Business Days from and including the date of the Conversion Notice, and shall not fall after the Maturity Date (the “Conversion Date”). 2.11.5 The Borrower shall have the right, at its sole discretion, to elect, upon any conversion of a portion of the Subordinated Loan into Shares, to prepay in cash on the Conversion Date all or part of the accrued and unpaid interest on such portion of the Subordinated Loan then being converted (the “Cash Interest Option”). Such right of the Borrower shall apply both in the context of a Borrower or Lender Conversion Notice and shall be exercised at any time before the Conversion Date. The Borrower shall notify the Lender of its exercise of the Cash Interest Option in writing prior to the Conversion Date. 2.11.6 On the Conversion Date, the Borrower shall deliver to the Lender (or at such later time as to which the Borrower and the Lender may agree) at the Place of Payment, against remittal of a receipt for the payment of the amount of Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest being then converted, at the Borrower’s expense (including any stamp taxes or similar governmental charges): 2.11.6.1 the appropriate number of duly and validly issued and fully paid and non-assessable Shares represented by one (1) or more stock certificates (in such number and registered in such names as the Lender may direct, provided that if Shares are to be registered in the name of a person other than the Lender, the Lender shall take all steps necessary to ensure that such registration and any transfer resulting therefrom does not breach any applicable provision of securities law or stock exchange rule); 2.11.6.2 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default would result from such payment of interest (as such terms are defined under the Credit Agreement or the Indenture, as applicable), if the Borrower exercises the Cash Interest Option, a cheque to the order of the Lender or any designee thereof in an amount representing such portion of the accrued and unpaid interest on the portion of the Subordinated Loan being converted that the Borrower elects to pay in cash; 2.11.6.3 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default (as such terms are defined under the Credit Agreement or the Indenture, as applicable) would result from such payment of principal or interest, if any fractional Share results from the calculation under Section 2.11.1 for any conversion of the Subordinated Loan or any interest thereon so converted, a cheque to the order of the Lender or any designee thereof in the amount representing the value of such fractional Share; and 2.11.6.4 to the extent of any unpaid principal amount of the Subordinated Loan after giving effect to such conversion (and at the Borrower’s expense), one (1) Promissory Note (registered in such name as the Lender may direct) in substantially the form, and in an aggregate face amount equal to the unpaid principal amount of the Subordinated Loan outstanding following all conversions up to and including the Conversion Date. Each new Promissory Note shall be dated the date immediately following the Conversion Date and future interest shall accrue from and including such date.
Appears in 2 contracts
Samples: Subordinated Loan Agreement (Sun Media Corp), Subordinated Loan Agreement (Sun Media Corp)
Convertibility. 2.11.1 By giving (i) Each holder of record of a notice share of Class 1 Common may, without cost to such holder and at such holder’s option, convert shares of Class 1 Common into fully paid and nonassessable shares of Class A Common at the rate of one share of Class A Common for each share of Class 1 Common surrendered for conversion; provided, a holder of shares of Class 1 Common may only convert such shares if such holder immediately sells the shares of Class A Common received upon such conversion in either a transaction effected through the facilities of the stock exchange or other trading market on a Business Day which the Class A Stock is then actively traded (a “Conversion NoticeMarket Transaction”) or a bona fide arm’s-length transaction with an unrelated party (a “Qualifying Private Transaction”) or in connection with any offering registered under the Securities Act of 1933, as amended (the “Securities Act”). Any such conversion may be effected by any holder of Class 1 Common by (x) surrendering (by electronic delivery or otherwise) at the office of the transfer agent for the Class A Common (the “Conversion Agent”) such holder’s shares of Class 1 Common to be converted, (y) delivering to the Conversion Agent a notice or other party hereto at instructions (which may be written or given electronically through any time prior automated transaction system maintained by the Conversion Agent) that such holder elects to convert all or a specified number of such shares of Class 1 Common, and (z) delivering to the Conversion Agent either (1) instructions to sell the shares of Class A Common issuable upon such conversion on behalf of such holder (which instructions may be given in accordance with any account agreement in place between such holder and the Conversion Agent), or (2) a certificate stating that such holder has sold the shares of Class A Common issuable upon such conversion in a Market Transaction or Qualifying Private Transaction or in connection with an offering registered under the Securities Act, together with a stock power or other transfer instructions identifying the person or persons in whose name the shares of Class A Common issuable upon such conversion are to be issued. Promptly thereafter, the Corporation shall issue and deliver the number of shares of Class A Common to which such holder shall be entitled as aforesaid in accordance with the instructions to sell or transfer instructions delivered to the Conversion Agent. Such conversion shall be made as of the close of business on the Business Day immediately preceding date of surrender and delivery to the Maturity Date, a party hereto may elect to convert all or any part Conversion Agent of the unpaid principal amount shares of the Subordinated Loan and, subject Class 1 Common and all other materials required to be delivered to the exercise by Conversion Agent, and the Borrower person or persons entitled to receive the shares of the Cash Interest Option, accrued and unpaid interest thereon into Shares at the Conversion Price, the number of which Shares Class A Common issuable on such conversion shall be determined by dividing treated for all purposes as the amount to be so converted (including, subject to the Cash Interest Option, any accrued and unpaid interest thereon) by the Conversion Price. No fractional Share shall be issued upon conversion record holder or holders of any portion such shares of the Subordinated Loan and accrued and unpaid interest thereon. Any fraction of Share shall be paid in cash by the Borrower Class A Common on the Conversion Date as indicated hereinaftersuch date.
2.11.2 Until the first conversion of any unpaid principal amount of the Subordinated Loan and accrued and unpaid interest thereon into Shares, the Lender shall have under this Section 2.11 none of the rights or obligations of a shareholder of the Borrower. Furthermore, no Conversion Notice may be sent by the Lender to the Borrower once the Borrower has sent to the Lender an Optional Prepayment Notice.
2.11.3 (ii) The Borrower shall reserve (if at any time its articles limit the number of authorized Shares) and Corporation will at all times reserve and keep available, solely for the purpose of delivery issue upon conversion of the Subordinated Loan as provided in this Section 2.11outstanding shares of Class 1 Common, such number of Shares shares of Class A Common as would then shall be deliverable at issuable upon the Conversion Price upon a conversion of all outstanding shares of Class 1 Common, provided that the foregoing shall not be considered to preclude the Corporation from satisfying its obligations in respect of the conversion of the Subordinated Loan and accrued and unpaid interest thereon, outstanding shares of Class 1 Common by delivery of shares of Class A Common which Shares would be upon delivery duly and validly issued and fully paid and non-assessable. If any such Shares require registration with or approval of any governmental authority under any applicable law or listing upon any national securities exchange before such Shares may be issued and delivered upon conversion, are held in the Borrower shall use its best efforts to cause such Share to be duly registered, approved and listed, as the case may be.
2.11.4 Each Conversion Notice shall specify (a) the unpaid principal amount treasury of the Subordinated Loan to be converted, (b) the amount of accrued and unpaid interest payable thereon up to and including the Conversion Date (subject to the exercise by the Borrower of the Cash Interest Option) to be converted, (c) the Conversion Price, (d) the number of Shares to be issued and delivered upon conversion and (e) the effective date of the conversion, which shall be no later than 10 Business Days from and including the date of the Conversion Notice, and shall not fall after the Maturity Date (the “Conversion Date”)Corporation.
2.11.5 The Borrower shall have the right, at its sole discretion, to elect, upon any conversion of a portion of the Subordinated Loan into Shares, to prepay in cash on the Conversion Date all or part of the accrued and unpaid interest on such portion of the Subordinated Loan then being converted (the “Cash Interest Option”). Such right of the Borrower shall apply both in the context of a Borrower or Lender Conversion Notice and shall be exercised at any time before the Conversion Date. The Borrower shall notify the Lender of its exercise of the Cash Interest Option in writing prior to the Conversion Date.
2.11.6 On the Conversion Date, the Borrower shall deliver to the Lender (or at such later time as to which the Borrower and the Lender may agree) at the Place of Payment, against remittal of a receipt for the payment of the amount of Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest being then converted, at the Borrower’s expense (including any stamp taxes or similar governmental charges):
2.11.6.1 the appropriate number of duly and validly issued and fully paid and non-assessable Shares represented by one (1) or more stock certificates (in such number and registered in such names as the Lender may direct, provided that if Shares are to be registered in the name of a person other than the Lender, the Lender shall take all steps necessary to ensure that such registration and any transfer resulting therefrom does not breach any applicable provision of securities law or stock exchange rule);
2.11.6.2 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default would result from such payment of interest (as such terms are defined under the Credit Agreement or the Indenture, as applicable), if the Borrower exercises the Cash Interest Option, a cheque to the order of the Lender or any designee thereof in an amount representing such portion of the accrued and unpaid interest on the portion of the Subordinated Loan being converted that the Borrower elects to pay in cash;
2.11.6.3 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default (as such terms are defined under the Credit Agreement or the Indenture, as applicable) would result from such payment of principal or interest, if any fractional Share results from the calculation under Section 2.11.1 for any conversion of the Subordinated Loan or any interest thereon so converted, a cheque to the order of the Lender or any designee thereof in the amount representing the value of such fractional Share; and
2.11.6.4 to the extent of any unpaid principal amount of the Subordinated Loan after giving effect to such conversion (and at the Borrower’s expense), one (1) Promissory Note (registered in such name as the Lender may direct) in substantially the form, and in an aggregate face amount equal to the unpaid principal amount of the Subordinated Loan outstanding following all conversions up to and including the Conversion Date. Each new Promissory Note shall be dated the date immediately following the Conversion Date and future interest shall accrue from and including such date.
Appears in 2 contracts
Samples: Reclassification Agreement (Sands Richard Et Al), Reclassification Agreement (Constellation Brands, Inc.)
Convertibility. 2.11.1 By giving a (a) At any time and from time to time during -------------- the Lender Convertibility Period, the Lender may elect, by notice on a Business Day (a “Conversion Notice”) to the Borrower, to convert all, or a portion of, the aggregate principal and interest of the Advances then outstanding into Conversion Securities of the Borrower at the Conversion Price and on such other party hereto at terms as are set forth in the Note. At any time prior and from time to time during the Borrower Convertibility Period, the Borrower may elect, by notice to the close of business on the Business Day immediately preceding the Maturity DateLender, a party hereto may elect to convert all all, or any part a portion of, the aggregate principal and interest of the unpaid principal amount Advances then outstanding into Conversion Securities of the Subordinated Loan andBorrower at the Conversion Price and on such other terms as are set forth in the Note.
(b) Following the conversion of any or all of the Advances, the Lender and the Borrower agree as follows:
(i) The Conversion Securities shall be deemed to be Registrable Securities for purposes of, and the Lender shall enjoy and be subject to the exercise rights and obligations of a holder of Registrable Securities, under Article IV (with the exception of Section 4.3 thereof) of the Investor Rights Agreement or the corresponding provisions of a successor agreement, if any, relating to such rights and obligations (a "Successor Agreement").
(ii) The Lender agrees to vote all the Conversion Securities held by it in favor of the election of persons to the Board of Directors of the Borrower (the "Board") who are designated in accordance with Section 5.1 of the Investor Rights Agreement or the corresponding provisions of any Successor Agreement.
(iii) For so long as the Lender or a permitted transferee of the Lender holds at least 1,000,000 shares of Conversion Securities, the Borrower will deliver to the Lender or such permitted transferee financial statements in accordance with Section 6.1 of the Investor Rights Agreement; provided that the Borrower's obligation to provide such financial statements shall terminate at such time as the Common Stock is registered under Section 12 of the Exchange Act.
(iv) From and after the earlier of the Disapproval Date and, if the Approval Condition has not been met, August 1, 2001, and until such time as (x) the Initial Public Offering is consummated or (y) an Actual Change of Control has occurred, if any Person unaffiliated (as the term affiliate is used for purposes of Regulation D of the Securities Act) with, and unrelated to, the Equity Holders offers to acquire in a bona fide transaction that is approved and recommended to the stockholders of the Borrower by the Borrower Board, either (A) all or substantially all of the Cash Interest Option, accrued and unpaid interest thereon into Shares at the Conversion Price, the number of which Shares shall be determined by dividing the amount to be so converted (including, subject to the Cash Interest Option, any accrued and unpaid interest thereon) by the Conversion Price. No fractional Share shall be issued upon conversion of any portion capital stock of the Subordinated Loan and accrued and unpaid interest thereon. Any fraction Borrower (whether in connection with a merger or consolidation of Share shall be paid in cash by the Borrower, an offer to purchase capital stock of the Borrower on the Conversion Date as indicated hereinafter.
2.11.2 Until the first conversion of any unpaid principal amount directed to all or substantially all of the Subordinated Loan stockholders of the Borrower, or otherwise), or (B) all or substantially all of the assets of the Borrower, and accrued and unpaid interest stockholders holding at least a majority of the shares entitled to vote thereon into Sharesvote to approve such offer, the Lender shall have under this Section 2.11 none be obligated to (I) vote all of its Conversion Securities in favor of the rights or obligations of a shareholder of the Borrower. Furthermoretransaction contemplated by such offer, no Conversion Notice may be sent by the Lender to the Borrower once extent any such vote is required for the Borrower has sent consummation of any such transaction, (II) transfer all of its Conversion Securities that it then holds of record or beneficially in connection with such transaction on terms no less favorable to the Lender than those accepted by such stockholders pursuant to such vote, (III) waive any and all appraisal rights it may have under the General Corporation Law of the State of Delaware, and (IV) execute and deliver all documents reasonably necessary to effectuate such transaction; provided that (w) the Lender shall only be obligated to sell its Conversion Securities on the same terms and conditions (including indemnification) as other stockholders (applied on a pro rata basis based on relative ownership interests); (x) the Lender shall not be required to make any representation or warranty other than with respect to its ownership of the Conversion Securities being sold in such drag-along transaction; (y) the Lender will indemnify the purchaser in such drag-along transaction on the same terms and conditions applicable to other stockholders of the Borrower (applied on a pro rata basis based on relative ownership interests), but will not be subject to any liability or obligation in excess of the amounts of the proceeds received by it in such drag-along transaction; and (z) other than its indemnification obligations (described above), the Lender will not be subject to any obligation that would interfere with the operation of its business. If the Lender fails or refuses to vote or sell its Conversion Securities as required by, or votes its Conversion Securities in contravention of this Section 2.10(b)(iv), the Lender hereby grants to the President or the Treasurer of the Borrower an Optional Prepayment Noticeirrevocable proxy, and the Lender hereby appoints the President or the Treasurer of the Borrower and each of them acting singly, its attorney-in-fact, to sell such Conversion Securities in accordance with the terms of this Section 2.10(b)(iv). At the closing of any such transaction, the Lender shall deliver, against receipt of the consideration specified in the offer, certificates representing the Conversion Securities that the Lender holds of record or beneficially, with all endorsements necessary for transfer. In the event that the Lender fails or refuses to comply for any reason with the provisions of this Section 2.10(b)(iv), the Borrower may elect to proceed with the transaction notwithstanding such failure or refusal and, in such event and upon tender of the specified consideration to the Lender, the rights of the Lender with respect to such Conversion Securities shall cease.
2.11.3 The Borrower shall reserve (if at any time its articles limit v) For purposes of determining the number of authorized Shares) and at all times keep available, solely for shares of Registrable Securities held by a holder of Conversion Securities in connection with any action or consent by holders of Registrable Securities pursuant to the purpose of delivery upon conversion terms of the Subordinated Loan as provided in this Section 2.11Investor Rights Agreement or any Successor Agreement, such holder of Conversion Securities shall be deemed to hold that number of Shares Registrable Securities as would then be deliverable at the Conversion Price upon a conversion of the Subordinated Loan and accrued and unpaid interest thereon, which Shares would be upon delivery duly and validly issued and fully paid and non-assessable. If any such Shares require registration with or approval of any governmental authority under any applicable law or listing upon any national securities exchange before such Shares may be issued and delivered upon conversion, the Borrower shall use its best efforts to cause such Share to be duly registered, approved and listed, as the case may be.
2.11.4 Each Conversion Notice shall specify (a) the unpaid principal amount of the Subordinated Loan to be converted, (b) the amount of accrued and unpaid interest payable thereon up to and including the Conversion Date (subject is equal to the exercise by the Borrower lesser of the Cash Interest Option) to be converted, (c) the Conversion Price, (dA) the number of Shares to be issued and delivered upon conversion Registrable Securities actually held by such holder, and (eB) such number of Registrable Securities which would result in the effective date aggregate number of shares of Registrable Securities held by all holders of Conversion Securities being equal to twenty percent (20%) of the conversion, which shall be no later than 10 Business Days from and including the date of the Conversion Notice, and shall not fall after the Maturity Date (the “Conversion Date”).
2.11.5 The Borrower shall have the right, at its sole discretion, to elect, upon any conversion of a portion of the Subordinated Loan into Shares, to prepay in cash on the Conversion Date all or part of the accrued and unpaid interest on such portion of the Subordinated Loan then being converted (the “Cash Interest Option”). Such right of the Borrower shall apply both in the context of a Borrower or Lender Conversion Notice and shall be exercised at any time before the Conversion Date. The Borrower shall notify the Lender of its exercise of the Cash Interest Option in writing prior to the Conversion Date.
2.11.6 On the Conversion Date, the Borrower shall deliver to the Lender (or at such later time as to which the Borrower and the Lender may agree) at the Place of Payment, against remittal of a receipt for the payment of the amount of Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest being then converted, at the Borrower’s expense (including any stamp taxes or similar governmental charges):
2.11.6.1 the appropriate aggregate number of duly and validly issued and fully paid and non-assessable Shares represented Registrable Securities held by one all holders of Registrable Securities (1) or more stock certificates (in such number and registered in such names as the Lender may direct, provided that if Shares are to be registered in the name of a person other than the Lender, the Lender shall take all steps necessary to ensure that such registration and any transfer resulting therefrom does not breach any applicable provision of securities law or stock exchange rule);
2.11.6.2 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default would result from such payment of interest (as such terms are defined under the Credit Agreement or the Indenture, as applicable), if the Borrower exercises the Cash Interest Option, a cheque to the order of the Lender or any designee thereof in an amount representing such portion of the accrued and unpaid interest on the portion of the Subordinated Loan being converted that the Borrower elects to pay in cash;
2.11.6.3 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default (as such terms are defined under the Credit Agreement or the Indenture, as applicable) would result from such payment of principal or interest, if any fractional Share results from the calculation under Section 2.11.1 for any conversion of the Subordinated Loan or any interest thereon so converted, a cheque to the order of the Lender or any designee thereof in the amount representing the value of such fractional Share; and
2.11.6.4 to the extent of any unpaid principal amount of the Subordinated Loan after giving effect to such conversion this clause (and at the Borrower’s expenseB), one ).
(1vi) Promissory Note (registered in such name as the Lender may direct) in substantially the form, and in an aggregate face amount equal to the unpaid principal amount The provisions of the Subordinated Loan Investor Rights Agreement or any Successor Agreement may not be amended, modified or waived in a manner which affects the holders of Conversion Securities in a manner differently than other holders of Registrable Securities without the prior written consent of holders of a majority of the then outstanding following all conversions up to and including the Conversion Date. Each new Promissory Note shall be dated the date immediately following the Conversion Date and future interest shall accrue from and including such dateSecurities.
Appears in 1 contract
Samples: Credit Agreement (Motorola Inc)
Convertibility. 2.11.1 By giving a notice on a Business Day (a “Conversion Notice”a) to The Holders of the other party hereto Notes will be entitled at any time after the Amendment Date and on or prior to the close of business on the Business Day immediately preceding the Final Maturity Date, a party hereto may elect Date to convert any or all or any part of their Notes into shares of Common Stock at the unpaid Conversion Price per share. The amount of shares of Common Stock to be delivered shall be the aggregate principal amount of the Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest thereon into Shares at the Conversion Price, the number of which Shares shall be determined by dividing the amount to be so converted (including, subject to the Cash Interest Option, any accrued and unpaid interest thereon) by the Conversion Price. No fractional Share shall be issued upon Notes delivered for conversion of any portion of the Subordinated Loan and accrued and unpaid interest thereon. Any fraction of Share shall be paid in cash by the Borrower on the Conversion Date as indicated hereinafter.
2.11.2 Until the first conversion of any unpaid principal amount of the Subordinated Loan and accrued and unpaid interest thereon into Shares, the Lender shall have under this Section 2.11 none of the rights or obligations of a shareholder of the Borrower. Furthermore, no Conversion Notice may be sent by the Lender to the Borrower once the Borrower has sent to the Lender an Optional Prepayment Notice.
2.11.3 The Borrower shall reserve (if at any time its articles limit the number of authorized Shares) and at all times keep available, solely for the purpose of delivery upon conversion of the Subordinated Loan as provided in this Section 2.11, such number of Shares as would then be deliverable at the Conversion Price upon a conversion of the Subordinated Loan and accrued and unpaid interest thereon, which Shares would be upon delivery duly and validly issued and fully paid and non-assessable. If any such Shares require registration with or approval of any governmental authority under any applicable law or listing upon any national securities exchange before such Shares may be issued and delivered upon conversion, the Borrower shall use its best efforts to cause such Share to be duly registered, approved and listed, as the case may be.
2.11.4 Each Conversion Notice shall specify (a) the unpaid principal amount of the Subordinated Loan to be converted, (b) plus the amount of accrued and unpaid interest payable thereon up to and including divided by the Conversion Date Price then in effect.
(subject b) Conversion of shares of the Notes may be effected by any Holder thereof upon the surrender to the exercise Company, at the principal office of the Company or at the office of a conversion agent as may be designated by the Borrower Board of Directors, of the Cash Interest Option) certificate or certificates for such Notes to be converted, converted accompanied by a complete and manually signed Notice of Conversion (cas set forth in the form of Note attached hereto) along with appropriate endorsements and transfer documents as required by the Conversion Price, (d) the number of Shares to be issued and delivered upon Company or any conversion and (e) the effective date agent The conversion of the conversion, which shall Notes will be no later than 10 Business Days from and including deemed to have been made on the date of the Conversion Notice, and shall not fall after the Maturity Date (the “Conversion Date”).
2.11.5 The Borrower shall ) such certificate or certificates have been surrendered and the right, at its sole discretion, to elect, upon any conversion receipt of a portion such notice of the Subordinated Loan into Shares, to prepay in cash on conversion. As promptly as reasonably practicable following the Conversion Date all Date, the Company shall deliver or part cause to be delivered (i) certificates representing the number of validly issued, fully paid and nonassessable full shares of Common Stock to which the accrued and unpaid interest on such portion Holder of the Subordinated Loan then Notes being converted (or such Holder’s transferee) shall be entitled, and (ii) if less than the “Cash Interest Option”). Such right total aggregate principal amount of the Borrower shall apply both in Notes evidenced by the context surrendered certificate are being converted, a new certificate for the aggregate principal amount of a Borrower Notes evidenced by such surrendered certificate or Lender Conversion Notice and shall be exercised at any time before certificates less the Conversion Dateaggregate principal amount of Notes being converted. The Borrower shall notify the Lender of its exercise of the Cash Interest Option in writing prior to the Conversion Date.
2.11.6 On the Conversion Date, the Borrower rights of the Holder of the Notes being converted shall deliver cease except for the right to receive shares of Common Stock and the Person entitled to receive the shares of Common Stock shall be treated for all purposes as having become the record Holder of such shares of Common Stock at such time.
(c) In connection with the conversion of Notes, no fractions of shares of Common Stock shall be issued, but the Company shall, with respect to any fractional interest: (i) pay cash with respect to the Lender (or at such later time as to which the Borrower and the Lender may agree) at the Place of Payment, against remittal of a receipt for the payment of the amount of Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest being then converted, at the Borrower’s expense (including any stamp taxes or similar governmental charges):
2.11.6.1 the appropriate number of duly and validly issued and fully paid and non-assessable Shares represented by one (1) or more stock certificates (in such number and registered in such names as the Lender may direct, provided that if Shares are to be registered in the name of a person other than the Lender, the Lender shall take all steps necessary to ensure that such registration and any transfer resulting therefrom does not breach any applicable provision of securities law or stock exchange rule);
2.11.6.2 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default would result from such payment of interest (as such terms are defined under the Credit Agreement or the Indenture, as applicable), if the Borrower exercises the Cash Interest Option, a cheque to the order of the Lender or any designee thereof in an amount representing such portion of the accrued and unpaid interest on the portion of the Subordinated Loan being converted that the Borrower elects to pay in cash;
2.11.6.3 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default (as such terms are defined under the Credit Agreement or the Indenture, as applicable) would result from such payment of principal or interest, if any fractional Share results from the calculation under Section 2.11.1 for any conversion of the Subordinated Loan or any interest thereon so converted, a cheque to the order of the Lender or any designee thereof in the amount representing the value Market Price of such fractional Shareshare; and
2.11.6.4 or (ii) round up to the extent next whole share of any unpaid principal amount of the Subordinated Loan after giving effect to such conversion (and at the Borrower’s expense), one (1) Promissory Note (registered in such name as the Lender may direct) in substantially the form, and in an aggregate face amount equal to the unpaid principal amount of the Subordinated Loan outstanding following all conversions up to and including the Conversion Date. Each new Promissory Note shall be dated the date immediately following the Conversion Date and future interest shall accrue from and including such dateCommon Stock.
Appears in 1 contract
Convertibility. 2.11.1 By giving a notice on a Business Day (a “Conversion Notice”a) to The Holders of the other party hereto Notes will be entitled at any time after the Amendment Date and on or prior to the close of business on the Business Day immediately preceding the Final Maturity Date, a party hereto may elect Date to convert any or all or any part of their Notes into shares of Common Stock at the unpaid Conversion Price per share. The amount of shares of Common Stock to be delivered shall be the aggregate principal amount of the Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest thereon into Shares at the Conversion Price, the number of which Shares shall be determined by dividing the amount to be so converted (including, subject to the Cash Interest Option, any accrued and unpaid interest thereon) by the Conversion Price. No fractional Share shall be issued upon Notes delivered for conversion of any portion of the Subordinated Loan and accrued and unpaid interest thereon. Any fraction of Share shall be paid in cash by the Borrower on the Conversion Date as indicated hereinafter.
2.11.2 Until the first conversion of any unpaid principal amount of the Subordinated Loan and accrued and unpaid interest thereon into Shares, the Lender shall have under this Section 2.11 none of the rights or obligations of a shareholder of the Borrower. Furthermore, no Conversion Notice may be sent by the Lender to the Borrower once the Borrower has sent to the Lender an Optional Prepayment Notice.
2.11.3 The Borrower shall reserve (if at any time its articles limit the number of authorized Shares) and at all times keep available, solely for the purpose of delivery upon conversion of the Subordinated Loan as provided in this Section 2.11, such number of Shares as would then be deliverable at the Conversion Price upon a conversion of the Subordinated Loan and accrued and unpaid interest thereon, which Shares would be upon delivery duly and validly issued and fully paid and non-assessable. If any such Shares require registration with or approval of any governmental authority under any applicable law or listing upon any national securities exchange before such Shares may be issued and delivered upon conversion, the Borrower shall use its best efforts to cause such Share to be duly registered, approved and listed, as the case may be.
2.11.4 Each Conversion Notice shall specify (a) the unpaid principal amount of the Subordinated Loan to be converted, (b) plus the amount of accrued and unpaid interest payable thereon up to and including divided by the Conversion Date Price then in effect.
(subject b) Conversion of shares of the Notes may be effected by any Holder thereof upon the surrender to the exercise Company, at the principal office of the Company or at the office of a conversion agent as may be designated by the Borrower Board of Directors, of the Cash Interest Option) certificate or certificates for such Notes to be converted, converted accompanied by a complete and manually signed Notice of Conversion (cas set forth in the form of Note attached hereto) along with appropriate endorsements and transfer documents as required by the Company or any conversion agent The conversion of the Notes will be deemed to have been made on the date (the "Conversion Date") such certificate or certificates have been surrendered and the receipt of such notice of conversion. As promptly as reasonably practicable following the Conversion PriceDate, the Company shall deliver or cause to be delivered (di) certificates representing the number of Shares validly issued, fully paid and nonassessable full shares of Common Stock to be issued and delivered upon conversion and (e) which the effective date Holder of the conversion, which shall be no later than 10 Business Days from and including the date of the Conversion Notice, and shall not fall after the Maturity Date (the “Conversion Date”).
2.11.5 The Borrower shall have the right, at its sole discretion, to elect, upon any conversion of a portion of the Subordinated Loan into Shares, to prepay in cash on the Conversion Date all or part of the accrued and unpaid interest on such portion of the Subordinated Loan then Notes being converted (or such Holder's transferee) shall be entitled, and (ii) if less than the “Cash Interest Option”). Such right total aggregate principal amount of the Borrower shall apply both in Notes evidenced by the context surrendered certificate are being converted, a new certificate for the aggregate principal amount of a Borrower Notes evidenced by such surrendered certificate or Lender Conversion Notice and shall be exercised at any time before certificates less the Conversion Dateaggregate principal amount of Notes being converted. The Borrower shall notify the Lender of its exercise of the Cash Interest Option in writing prior to the Conversion Date.
2.11.6 On the Conversion Date, the Borrower rights of the Holder of the Notes being converted shall deliver cease except for the right to receive shares of Common Stock and the Person entitled to receive the shares of Common Stock shall be treated for all purposes as having become the record Holder of such shares of Common Stock at such time.
(c) In connection with the conversion of Notes, no fractions of shares of Common Stock shall be issued, but the Company shall, with respect to any fractional interest: (i) pay cash with respect to the Lender (or at such later time as to which the Borrower and the Lender may agree) at the Place of Payment, against remittal of a receipt for the payment of the amount of Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest being then converted, at the Borrower’s expense (including any stamp taxes or similar governmental charges):
2.11.6.1 the appropriate number of duly and validly issued and fully paid and non-assessable Shares represented by one (1) or more stock certificates (in such number and registered in such names as the Lender may direct, provided that if Shares are to be registered in the name of a person other than the Lender, the Lender shall take all steps necessary to ensure that such registration and any transfer resulting therefrom does not breach any applicable provision of securities law or stock exchange rule);
2.11.6.2 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default would result from such payment of interest (as such terms are defined under the Credit Agreement or the Indenture, as applicable), if the Borrower exercises the Cash Interest Option, a cheque to the order of the Lender or any designee thereof in an amount representing such portion of the accrued and unpaid interest on the portion of the Subordinated Loan being converted that the Borrower elects to pay in cash;
2.11.6.3 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default (as such terms are defined under the Credit Agreement or the Indenture, as applicable) would result from such payment of principal or interest, if any fractional Share results from the calculation under Section 2.11.1 for any conversion of the Subordinated Loan or any interest thereon so converted, a cheque to the order of the Lender or any designee thereof in the amount representing the value Market Price of such fractional Shareshare; and
2.11.6.4 or (ii) round up to the extent next whole share of any unpaid principal amount of the Subordinated Loan after giving effect to such conversion (and at the Borrower’s expense), one (1) Promissory Note (registered in such name as the Lender may direct) in substantially the form, and in an aggregate face amount equal to the unpaid principal amount of the Subordinated Loan outstanding following all conversions up to and including the Conversion Date. Each new Promissory Note shall be dated the date immediately following the Conversion Date and future interest shall accrue from and including such dateCommon Stock.
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Samples: Securities Purchase Agreement (Plainfield Asset Management LLC)
Convertibility. 2.11.1 By giving a notice on a Business Day (a) The Holders of the Notes (each a “Conversion NoticeHolder”) to the other party hereto will be entitled at any time prior after the Maturity Date to convert any or all of their Notes into shares of Common Stock at the Conversion Price per share. The number of shares of Common Stock to be delivered shall be equal to the close of business on the Business Day immediately preceding the Maturity Date, a party hereto may elect to convert all or any part of the unpaid aggregate principal amount of the Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest thereon into Shares at the Conversion Price, the number of which Shares shall be determined by dividing the amount to be so converted (including, subject to the Cash Interest Option, any accrued and unpaid interest thereon) by the Conversion Price. No fractional Share shall be issued upon Notes delivered for conversion of any portion of the Subordinated Loan and accrued and unpaid interest thereon. Any fraction of Share shall be paid in cash by the Borrower on the Conversion Date as indicated hereinafter.
2.11.2 Until the first conversion of any unpaid principal amount of the Subordinated Loan and accrued and unpaid interest thereon into Shares, the Lender shall have under this Section 2.11 none of the rights or obligations of a shareholder of the Borrower. Furthermore, no Conversion Notice may be sent by the Lender to the Borrower once the Borrower has sent to the Lender an Optional Prepayment Notice.
2.11.3 The Borrower shall reserve (if at any time its articles limit the number of authorized Shares) and at all times keep available, solely for the purpose of delivery upon conversion of the Subordinated Loan as provided in this Section 2.11, such number of Shares as would then be deliverable at the Conversion Price upon a conversion of the Subordinated Loan and accrued and unpaid interest thereon, which Shares would be upon delivery duly and validly issued and fully paid and non-assessable. If any such Shares require registration with or approval of any governmental authority under any applicable law or listing upon any national securities exchange before such Shares may be issued and delivered upon conversion, the Borrower shall use its best efforts to cause such Share to be duly registered, approved and listed, as the case may be.
2.11.4 Each Conversion Notice shall specify (a) the unpaid principal amount of the Subordinated Loan to be converted, (b) plus the amount of accrued and unpaid interest payable thereon up to and including divided by the Conversion Date Price then in effect.
(subject b) Conversion of the Notes may be effected by any Holder thereof upon the surrender to the exercise Company, at the principal office of the Company or at the office of a conversion agent as may be designated by the Borrower Board of Directors, of the Cash Interest Option) certificate or certificates for such Notes to be converted, converted accompanied by a complete and manually signed Notice of Conversion (cas set forth in the form of Note attached hereto) along with appropriate endorsements and transfer documents as required by the Conversion Price, (d) the number of Shares to be issued and delivered upon Company or any conversion and (e) the effective date agent. The conversion of the conversion, which shall Notes will be no later than 10 Business Days from and including deemed to have been made on the date of the Conversion Notice, and shall not fall after the Maturity Date (the “Conversion Date”).
2.11.5 The Borrower shall ) such certificate or certificates have been surrendered and the right, at its sole discretion, to elect, upon any conversion receipt of a portion such notice of the Subordinated Loan into Shares, to prepay in cash on conversion. As promptly as reasonably practicable following the Conversion Date all Date, the Company shall deliver or part cause to be delivered (i) certificates representing the number of validly issued, fully paid and nonassessable full shares of Common Stock to which the accrued and unpaid interest on such portion Holder of the Subordinated Loan then Notes being converted (or such Holder’s transferee) shall be entitled, and (ii) if less than the “Cash Interest Option”). Such right total aggregate principal amount of the Borrower shall apply both in Notes evidenced by the context surrendered certificate are being converted, a new certificate for the aggregate principal amount of a Borrower Notes evidenced by such surrendered certificate or Lender Conversion Notice and shall be exercised at any time before certificates less the Conversion Dateaggregate principal amount of Notes being converted. The Borrower shall notify the Lender of its exercise of the Cash Interest Option in writing prior to the Conversion Date.
2.11.6 On the Conversion Date, the Borrower rights of the Holder of the Notes being converted shall deliver cease except for the right to receive shares of Common Stock and the Person entitled to receive the shares of Common Stock shall be treated for all purposes as having become the record Holder of such shares of Common Stock at such time.
(c) In connection with the conversion of Notes, no fractions of shares of Common Stock shall be issued, but the Company shall, with respect to any fractional interest: (i) pay cash with respect to the Lender (or at such later time as to which the Borrower and the Lender may agree) at the Place of Payment, against remittal of a receipt for the payment of the amount of Subordinated Loan and, subject to the exercise by the Borrower of the Cash Interest Option, accrued and unpaid interest being then converted, at the Borrower’s expense (including any stamp taxes or similar governmental charges):
2.11.6.1 the appropriate number of duly and validly issued and fully paid and non-assessable Shares represented by one (1) or more stock certificates (in such number and registered in such names as the Lender may direct, provided that if Shares are to be registered in the name of a person other than the Lender, the Lender shall take all steps necessary to ensure that such registration and any transfer resulting therefrom does not breach any applicable provision of securities law or stock exchange rule);
2.11.6.2 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default would result from such payment of interest (as such terms are defined under the Credit Agreement or the Indenture, as applicable), if the Borrower exercises the Cash Interest Option, a cheque to the order of the Lender or any designee thereof in an amount representing such portion of the accrued and unpaid interest on the portion of the Subordinated Loan being converted that the Borrower elects to pay in cash;
2.11.6.3 provided that no Default has occurred and is continuing, no Event of Default has occurred which has not been waived and no Default (as such terms are defined under the Credit Agreement or the Indenture, as applicable) would result from such payment of principal or interest, if any fractional Share results from the calculation under Section 2.11.1 for any conversion of the Subordinated Loan or any interest thereon so converted, a cheque to the order of the Lender or any designee thereof in the amount representing the value Market Price of such fractional Shareshare; and
2.11.6.4 or (ii) round up to the extent next whole share of any unpaid principal amount of the Subordinated Loan after giving effect to such conversion (and at the Borrower’s expense), one (1) Promissory Note (registered in such name as the Lender may direct) in substantially the form, and in an aggregate face amount equal to the unpaid principal amount of the Subordinated Loan outstanding following all conversions up to and including the Conversion Date. Each new Promissory Note shall be dated the date immediately following the Conversion Date and future interest shall accrue from and including such dateCommon Stock.
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