Exchange and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption 24 Section 2.12. Removal of Transfer Restrictions 25 Section 2.13. Replacement Notes 25 Section 2.14. Registered Holders; Certain Rights with Respect to Global Notes 26 Section 2.15. Cancellation 26 Section 2.16. Notes Held by the Company or its Affiliates 26 Section 2.17. Temporary Notes 26 Section 2.18. Outstanding Notes 27 Section 2.19. Repurchases by the Company 28 Section 2.20. CUSIP and ISIN Numbers 28 Article 3. Covenants 28 Section 3.01. Payment on Notes 28 Section 3.02. Exchange Act Reports 28 Section 3.03. Rule 144A Information 29 Section 3.04. Additional Interest 29 Section 3.05. Compliance and Default Certificates 30 Section 3.06. Stay, Extension and Usury Laws 30 Section 3.07. Acquisition of Notes by the Company and its Affiliates 30
Exchange and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption 25 Section 2.12. Replacement Notes 26 Section 2.13. Registered Holders; Certain Rights with Respect to Global Notes 26 Section 2.14. Cancellation 26 Section 2.15. Notes Held by the Company or its Affiliates 27 Section 2.16. Temporary Notes 27 Section 2.17. Outstanding Notes 27 Section 2.18. Repurchases by the Company 28 Section 2.19. CUSIP and ISIN Numbers 28 Article 3. Covenants 28 Section 3.01. Payment on Notes 28 Section 3.02. Exchange Act Reports 28 Section 3.03. Rule 144A Information 29 Section 3.04. Additional Interest 29 Section 3.05. Compliance and Default Certificates 30 Section 3.06. Stay, Extension and Usury Laws 30 Section 3.07. Acquisition of Notes by the Company and its Affiliates 30 Article 4. Repurchase and Redemption 31 Section 4.01. No Sinking Fund 31 Section 4.02. Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change 31 Section 4.03. Right of the Company to Redeem the Notes. 35 Article 5. Conversion 38 Section 5.01. Right to Convert 38 Section 5.02. Conversion Procedures 42 Section 5.03. Settlement Upon Conversion 44 Section 5.04. Reserve and Status of Common Stock Issued Upon Conversion 47 Section 5.05. Adjustments to the Conversion Rate 48 Section 5.06. Voluntary Adjustments 58 Section 5.07. Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change 59 Section 5.08. Exchange in Lieu of Conversion 60 Section 5.09. Effect of Common Stock Change Event 61 Article 6. Successors 62 Section 6.01. When the Company May Merge, Etc. 62 Section 6.02. Qualified Successor Entity Substituted 63 Section 6.03. Exclusion for Asset Transfers with Wholly Owned Subsidiaries 63 Article 7. Defaults and Remedies 63 Section 7.01. Events of Default 63 Section 7.02. Acceleration 65 Section 7.03. Sole Remedy for a Failure to Report 66 Section 7.04. Other Remedies 67 Section 7.05. Waiver of Past Defaults 67 Section 7.06. Control by Majority 67 Section 7.07. Limitation on Suits 68 Section 7.08. Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Conversion Consideration 68 Section 7.09. Collection Suit by Trustee 68 Section 7.10. Trustee May File Proofs of Claim 69 Section 7.11. Priorities 69 Section 7.12. Undertaking for Costs 69 Article 8. Amendments, Supplements and Waivers 70 Section 8.01. Without the Consent of Holders 70 Section 8.02. With the Con...
Exchange and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption. 24 Section 2.12. Removal of Transfer Restrictions. 25 Section 2.13. Replacement Notes. 25 Section 2.14. Registered Holders; Certain Rights with Respect to Global Notes. 26 Section 2.15. Cancellation. 26 Section 2.16. Notes Held by the Company or its Affiliates. 26 Section 2.17. Temporary Notes. 26 Section 2.18. Outstanding Notes. 27 Section 2.19. Repurchases by the Company. 28 Section 2.20. CUSIP and ISIN Numbers. 28 Article 3. Covenants 28 Section 3.01. Payment on Notes. 28 Section 3.02. Exchange Act Reports. 28 Section 3.03. Rule 144A Information. 29 Section 3.04. Additional Interest. 29
Exchange and Cancellation of Notes to Be Converted, Redeemed or Repurchased.
Exchange and Cancellation. On the date hereof, pursuant to Section 3(a)(9) of the Securities Act, the Holder hereby agrees to convey, assign and transfer the Note to the Company in exchange for which the Company agrees to issue the Convertible Note to the Holder and, upon delivery of the Convertible Note to the Holder, the parties shall consummate the Cancellation in accordance herewith.
(a) On the date hereof, in exchange for the Note, the Company shall deliver or cause to be delivered to the Holder (or its designee) the Convertible Note.
(b) The Convertible Note shall each be issued with the following securities act legend: NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
(c) The Holder shall deliver or cause to be delivered to the Company (or its designee) the Note (or affidavit of lost warrants, in form provided upon request by the Company and reasonably acceptable to the Holder) as soon as commercially practicable following the date hereof (the “Delivery Date”). Immediately following the delivery of the Convertible Note to the Holder (or its designee), the Holder shall relinquish all rights, title and interest in the Note assign the same to the Company, and the Note shall be cancelled.
(d) The parties acknowledge and agree that the Convertible Note shall be issued to the Holder in exchange for the Note without the payment of any additional consideration.
(e) Notwithstanding anything herein to the contrary, on or after the date hereof, the Holder may, directly or indirectly, sell or transfer all, or any part, of the Convertible Note to any Person (an “Assignee”).
Exchange and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption. 23 Section 2.12. Replacement Notes. 23 Section 2.13. Registered Holders; Certain Rights with Respect to Global Notes. 24
Exchange and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption. 25 Section 2.12. Removal of Transfer Restrictions. 26 Section 2.13. Replacement Notes. 26 Section 2.14. Registered Holders; Certain Rights with Respect to Global Notes. 27 Section 2.15. Cancellation. 27 Section 2.16. Notes Held by the Company or its Affiliates. 27 Section 2.17. Temporary Notes. 27 Section 2.18. Outstanding Notes. 28 Section 2.19. Repurchases by the Company. 28 Section 2.20. CUSIP and ISIN Numbers. 29 Article 3. Covenants 29 Section 3.01. Payment on Notes. 29 Section 3.02. Exchange Act Reports. 29 Section 3.03. Rule 144A Information. 30 Section 3.04. Additional Interest. 30 Section 3.05. Compliance and Default Certificates. 31 Section 3.06. Stay, Extension and Usury Laws. 31 Section 3.07. Acquisition of Notes by the Company and its Affiliates. 31 Article 4. Repurchase and Redemption 32 Section 4.01. No Sinking Fund. 32 Section 4.02. Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change. 32 Section 4.03. Right of the Company to Redeem the Notes. 36 Article 5. Conversion 39 Section 5.01. Right to Convert. 39 Section 5.02. Conversion Procedures. 43
Exchange and Cancellation. Upon the terms and subject to the conditions set forth in this Agreement, the Warrantholders shall, severally and not jointly, surrender to the Company for cancellation the Warrantholders’ Series B Warrants and Series C Warrants in the amounts set forth opposite their respective names on Exhibit A hereto, and in exchange for such surrendered Series B Warrants and Series C Warrants, the Company shall cancel the surrendered Series B Warrants and Series C Warrants and issue to the Warrantholders: 26,728,369 warrants (the “Exchange Warrants”) to purchase an aggregate of 26,728,369 shares of Common Stock (the “Warrant Shares”) in the amounts set forth opposite their respective names on Exhibit A hereto, at a price per Warrant of $1.13 (the “Purchase Price”). The Exchange Warrants shall be comprised of two tranches as follows: (a) Series B/C Exchange Warrants (“Series B/C Exchange Warrants”) exercisable for an aggregate of 20,442,346 shares of Common Stock, with an exercise price equal to the Purchase Price and; (b) Series D Warrants (“Series D Warrants”) exercisable for an aggregate of 6,286,023 shares of Common Stock, with an exercise price equal to the Purchase Price. Upon delivery of a Warrantholder’s Series B Warrants and Series C Warrants to the Company, such Series B Warrants and Series C Warrants shall be cancelled and terminated and such Warrantholder shall have no further rights in such Series B Warrants or Series C Warrants.
Exchange and Cancellation. Article II is hereby amended by adding the following new Section 2.07A immediately following Section 2.07:
Exchange and Cancellation. Concurrently with the effectiveness of this Agreement, Assignee and Borrower agree that Assignee will exchange the Purchased Term Loans for $12,000,000 in principal amount of Senior Notes issued by Borrower, and Borrower agrees to issue $12,000,000 in aggregate principal amount of Senior Notes, dated the Effective Date and accruing interest at the rate per annum provided for in such Senior Notes. Upon the issuance of such Senior Notes, the Purchased Term Loans shall be cancelled and the Indebtedness represented by such Purchased Term Loans shall be deemed paid and no longer outstanding under the Credit Agreement for any purpose whatsoever. Each of the parties hereto agrees that notwithstanding anything to the contrary in the Credit Agreement, that such cancellation and payment of the Indebtedness represented by the Purchased Term Loans shall be applied under the Original Credit Agreement as follows: first, to the payment of the $2,000,000 principal installment on the Term Loans due on March 31, 2002; second, of the remaining $10,000,000 in Purchased Term Loans, $5,000,000 in the aggregate shall be applied to prepay one-half of each of the $2,500,000 principal installments due on the Term Loans under the Original Credit Agreement on June 30, 2002, September 30, 2002, December 31, 2002 and March 31, 2003; and third, the remaining $5,000,000 shall be applied to prepay $5,000,000 of the $10,000,000 principal installment due on the Term Loans under the Original Credit Agreement on June 30, 2003. Assignee will have no rights under any of the Credit Documents with respect to the Senior Notes.
