Merger, etc. If the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other person, or (c) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any such transaction being hereinafter sometimes referred to as a "Reorganization") then, in each such case, the Holder of this Option, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, in the case of any transfer of properties or assets referred to above, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 7 contracts
Sources: Employment Agreement (Western Media Group Corp), Employment Agreement (Medlink International, Inc.), Employment Agreement (Western Media Group Corp)
Merger, etc. If In case at any time or from time to time after the date of this Option, the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other personPerson, or (c) transfer all or substantially all of its properties or assets to any other person Person under any plan or arrangement contemplating the dissolution of the Company within 24 months from the date of such transfer (any such transaction being hereinafter sometimes referred to as a "Reorganization") then, in each such case, the Holder of this OptionHolder, on upon the exercise hereof as provided in Section 2 1 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the such Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder such holder had so exercised this Option, Option immediately prior thereto. The thereto (all subject to further adjustment thereafter as provided in Section 2, provided that the successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree has agreed prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, in the case of any transfer of properties or assets referred to above, the person Person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 3 contracts
Sources: Consulting Agreement (Uncommon Media Group Inc), Option Agreement (Uncommon Media Group Inc), Option Agreement (Uncommon Media Group Inc)
Merger, etc. If of the Company shall Company.
(a) effect a reorganizationNothing contained in this Agreement, (b) consolidate the Indenture, the Supplemental Indenture or any of the Debentures shall prevent any merger, liquidation or consolidation of the Company with or merge into any other personanother corporation or corporations, or (c) transfer successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or any sale or other conveyance of all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution property of the Company (to another corporation; provided, however, and the Company hereby covenants and agrees, that upon any such transaction being hereinafter sometimes referred to as a "Reorganization") thenmerger, liquidation, consolidation or merger in each such casewhich the Company is not the continuing corporation, the Holder of this Option, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu rights and obligations of the Shares issuable on Company under this Agreement shall be expressly assumed, by a supplemental agreement satisfactory in form to the Exchange Agent, executed and delivered to the Exchange Agent by the corporation formed by such exercise prior to such consummation consolidation, or such effective dateinto which the Company shall have merged, the stock and other securities and property (including cash) or to which the Holder would assets of the Company shall have been entitled upon distributed in liquidation, or which shall have acquired such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause property.
(b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, in In the case of any transfer consolidation, merger, sale or conveyance of properties or assets by the Company referred to abovein subsection (a) hereof, and upon the person acquiring all or substantially all execution and delivery to the Exchange Agent of the properties supplemental agreement referred to therein by the successor or assets acquiring corporation and the delivery to the Exchange Agent of an Officers' Certificate and an Opinion of Counsel stating that such transaction complies with this Section, such successor or acquiring corporation shall succeed to the rights and obligations of and be substituted for the Company under this Agreement, with the same effect as if such corporation had been named herein as the Company). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no the event to be less than 10% annually); of any such sale or (ii) on the Effective Dateconveyance, the Holder Company (which term shall for this purpose mean the corporation named as the "Company" in the first paragraph of this Option Agreement or any successor corporation which shall theretofore have become such in the manner described in this Section) shall be paid discharged from all obligations and covenants under this Agreement and may (but need not) be dissolved and liquidated.
(c) The Exchange Agent may rely on an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share Officers' Certificate and an Opinion of Common Stock Counsel as conclusive evidence that any such consolidation, merger, sale or conveyance of or by the Company being purchased by complies with the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders provisions of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholdersthis Section 12.
Appears in 3 contracts
Sources: Exchange Agent Agreement (Pennzoil Co /De/), Exchange Agent Agreement (Pennzoil Co /De/), Exchange Agent Agreement (Pennzoil Co /De/)
Merger, etc. If the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other person, or (c) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any such transaction being hereinafter sometimes referred to as a "Reorganization") then, in each such case, the Holder of this Option, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, in the case of any transfer of properties or assets referred to above, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.such
Appears in 2 contracts
Sources: Employment Agreement (Medlink International, Inc.), Employment Agreement (Medlink International, Inc.)
Merger, etc. If the Company Tenant shall (a) effect a reorganization, (b) not consolidate with or any Person, merge into any other personPerson, or (c) transfer convey, transfer, lease or otherwise dispose of to any Person all or substantially all of its properties assets in any single transaction (or assets to any other person under any plan or arrangement contemplating the dissolution series of the Company related transactions), unless:
(any such transaction being hereinafter sometimes referred to as a "Reorganization"a) then, in each such case, the Holder of this Option, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization Person (the "Effective DateSurviving Tenant"), ) shall receive, in lieu be a corporation or organization organized under the laws of the Shares issuable on United States of America, a state or commonwealth thereof or the District of Columbia and shall have assumed in writing each obligation, and succeeded to each right, of Tenant under this Lease;
(b) no Event of Default shall be continuing at the time of such exercise transaction;
(c) the Surviving Tenant shall have delivered to Landlord and Lender an Officers' Certificate stating that such transaction complies with the terms and conditions of this Paragraph 21 and that all Governmental Action, if any, required prior to the consummation of such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or transaction in connection with such dissolutiontransaction have been obtained unless the failure to obtain such Governmental Action would not have a material adverse effect on the ability of the Surviving Tenant to perform its obligations under this Lease; and.
(d) the Surviving Tenant shall represent and warrant to Landlord and Lender, as the case may beand shall have caused to be delivered to Landlord and Lender an opinion of counsel, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance reasonably satisfactory to Landlord and Lender, that (w) the Holder that Surviving Tenant is a corporation in good standing in the state of its incorporation; (x) all documents executed and delivered by Surviving Tenant pursuant to this Option shall continue in full force Paragraph 21 have been duly authorized, executed and effect delivered by the Surviving Tenant and constitute the terms hereof shall be applicable to valid, legal and binding obligations of Surviving Tenant; and (y) the shares of stock and other securities and property receivable on exercise after Lease will, upon the consummation of such Reorganizationtransaction, be the valid, legal and shall be binding upon the issuer obligations of any Surviving Tenant, subject in each case to customary exceptions for creditors' rights and equity principles, as well as such stock or other securities (including, customary exceptions as were contained in the case legal opinions delivered concurrently with the execution and delivery of any transfer this Lease. Upon the consummation of properties or assets referred to abovesuch transaction, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this OptionSurviving Tenant, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or if other than Tenant immediately prior thereto), such rate to be compounded annually through October 18, 2004shall succeed to, and in no event be substituted for, and may exercise every right and power of, Tenant immediately prior to be less than 10% annually); or (ii) on the Effective Datesuch transaction under this Lease, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in with the same form effect as if the common stockholders of the Company Surviving Tenant had been named herein and therein, and Tenant immediately prior thereto shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholdershave no further obligation under this Lease.
Appears in 1 contract
Merger, etc. If After the Company shall (a) effect a reorganizationmerger of one or more corporations into the Corporation, (b) consolidate with any merger of the Corporation into another corporation, any consolidation of the Corporation and one or merge into more other corporations, or any other personcorporate reorganization of any form involving the Corporation as a party thereto involving any exchange, conversion, adjustment or (c) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution modification of the Company (outstanding shares of the Corporation's Common Stock, Optionee at the time of such Corporate reorganization shall, at no additional cost, be entitled, upon any such transaction being hereinafter sometimes referred to as a "Reorganization") then, in each such case, the Holder exercise of this Option, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, to receive in lieu of the Shares issuable on such exercise prior number of shares as to such consummation which this Option shall then be so exercised, the number and calls of shares of stock or other securities or such effective date, the stock and other securities and property (including cash) to which the Holder Optionee would have been entitled upon such consummation pursuant to the terms of the agreement of merger or in connection with such dissolution, as the case may beconsolidation, if at the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation time of such Reorganization, and shall be binding upon the issuer merger or consolidation Optionee had been a holder of any such stock or other securities (including, in the case record of any transfer a number of properties or assets referred to above, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share shares of Common Stock of the Company being purchased by Corporation equal to the Acquiring Company number of shares which then remain exercisable under this Option. Comparable rights shall accrue to Optionee in the Reorganization event of successive mergers or consolidations of the character described above. The foregoing adjustments and the Discounted Exercise Price described manner of application of the foregoing provisions shall be determined b the Committee in clause its sole discretion. Any such adjustment may provide for the elimination of any fractional share which might otherwise become subject to this Option. In the event of (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders adoption of a plan of merger or consolidation of the Company shall be paid by Corporation with any other corporation or association as a result of which the Acquiring Company for their shares holders of common the voting capital stock of the Company. The fair market value corporation as a group would receive less than 50% of any noncash property received from the Acquiring Company upon voting capital stock of the Reorganization shall be determined in good faith surviving or resulting corporation or (ii) the approval by the Board of Directors of the CompanyCorporation of an agreement providing for the sale or transfer (other than as security for obligations of the Corporation), then this Option shall become immediately exercisable in full, subject to any appropriate adjustments in the number of shares subject to Option and the Option Price, and shall remain exercisable for the remaining term of the Option, regardless of whether such Option has been outstanding for six months or of any provision contained in this agreement limiting the exercisability of this Option or any portion thereof for a minimum time period to exercise, subject to all of the terms of the Plan and of this Agreement not inconsistent with this paragraph. Anything contained herein to the contrary notwithstanding, upon the dissolution or liquidation of the Corporation this Option shall terminate; provided, however, that following the adoption of a plan of dissolution or liquidation, and in any event prior to such dissolution or liquidation (and as approved by provided above regarding certain mergers and consolidations), this Option shall be exercisable in full, regardless of whether such Option has been outstanding for six months or of any provision contained in this Agreement limiting the Company's stockholdersexercisability of this Option or any portion thereof for a minimum time period prior to exercise, subject to all of the terms of the Plan and of this Agreement not inconsistent with this paragraph.
Appears in 1 contract
Merger, etc. If the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other person, or (c) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any such transaction being hereinafter sometimes referred to as a "Reorganization") then, in each such case, the Holder of this OptionWarrant, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this OptionWarrant, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, in the case of any transfer of properties or assets referred to above, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this OptionWarrant, then the Company shall give 30 days' prior written notice to the Holder of this Option Warrant of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option Warrant or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18November 15, 2004 2002 (or immediately prior thereto), such rate to be compounded annually through October 18November 15, 20042002, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option Warrant shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option Warrant shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tengtu International Corp)
Merger, etc. If at any time after the date hereof there shall be a merger or consolidation of the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other person, or (c) a transfer of all or substantially all of its properties or the assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any to another entity, then the Warrant Holder shall be entitled to receive upon or after such transaction being hereinafter sometimes referred to as a "Reorganization") thentransfer, merger or consolidation becoming effective, and upon payment of the Exercise Price then in each such caseeffect, the Holder number of this Option, on the exercise hereof as provided in Section 2 at any time after the consummation shares or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu other securities or property of the Shares issuable on Company or of the successor corporation resulting from such exercise merger or consolidation, which would have been received by Warrant Holder for the shares of stock subject to this Warrant had this Warrant been exercised just prior to such consummation transfer, merger or consolidation becoming effective or to the applicable record date thereof, as the case may be. The Company will not merge or consolidate with or into any other corporation, or sell or otherwise transfer its property, assets and business substantially as an entirety to another corporation, unless the corporation resulting from such merger or consolidation (if not the Company), or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolutiontransferee corporation, as the case may be, if the Holder had so exercised this Optionshall expressly assume, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing by supplemental agreement reasonably satisfactory in form and substance to the Holder that Warrant Holder, the due and punctual performance and observance of each and every covenant and condition of this Option shall continue in full force Warrant to be performed and effect and observed by the terms Company. Reclassification, etc. If at any time after the date hereof there shall be applicable a reorganization or reclassification of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, then the Warrant Holder shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Exercise Price then in effect, the number of shares or other securities o property resulting from such reorganization or reclassification, which would have been received by the Warrant Holder for the shares of stock and other securities and property receivable on exercise after the consummation of subject to this Warrant had this Warrant at such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, in the case of any transfer of properties or assets referred to above, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholderstime been exercised.
Appears in 1 contract
Sources: Common Stock Purchase Warrant (American International Petroleum Corp /Nv/)
Merger, etc. If the Company shall (a) effect a reorganization, (b) Merge into or consolidate with any other Person, or permit any other Person to merge into any other personor consolidate with it, or sell, transfer, lease or otherwise dispose of (cin one transaction or in a series of transactions) transfer all or substantially all of its properties assets (in each case, whether now owned or assets to any hereafter acquired) unless:
(i) immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(ii) the Borrower is the surviving corporation or, if otherwise, (x) such other person Person or continuing corporation (the “Successor Company”) is a corporation or other entity organized under any plan or arrangement contemplating the dissolution laws of a state of the United States and (y) such Successor Company is a U.S. certificated air carrier; and
(any such transaction being hereinafter sometimes referred to as iii) in the case of a "Reorganization") then, in each such caseSuccessor Company, the Holder of this OptionSuccessor Company shall (A) execute, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection contemporaneously with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganizationtransaction, and shall be binding upon the issuer of any such stock or other securities (includingagreements, if any, as are in the case reasonable opinion of any transfer the Administrative Agent, necessary to evidence the assumption by the Successor Company of properties or assets referred to above, the person acquiring all or substantially liability for all of the properties or assets obligations of the Borrower hereunder and the other Loan Documents and (B) cause to be delivered to the Administrative Agent and the Lenders such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as each Lender or the Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company). If Upon any consolidation or merger in accordance with this Section 6.02(a) in any case in which the Acquiring Company has Borrower is not so agreed to continue this Optionthe surviving corporation, then the Successor Company shall give 30 days' prior written notice succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such Successor Company had been named as the Borrower herein. No such consolidation or merger shall have the effect of releasing the Borrower or any Successor Company which theretofore shall have become a successor to the Holder of Borrower in the manner prescribed in this Option of such ReorganizationSection 6.02(a) from its liability with respect to any Loan Document to which it is a party.
(b) Liquidate, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option wind up, or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on dissolve itself (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (suffer any liquidation or immediately prior theretodissolution), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 1 contract
Merger, etc. If the Company shall (a) effect a reorganization, (b) Merge into or consolidate with any other Person, or permit any other Person to merge into any other personor consolidate with it, or sell, transfer, lease or otherwise dispose of (cin one transaction or in a series of transactions) transfer all or substantially all of its properties assets (in each case, whether now owned or assets to any hereafter acquired) unless:
(i) immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(ii) the Borrower is the surviving corporation or, if otherwise, (x) such other person Person or continuing corporation (the “Successor Company”) is a corporation or other entity organized under any plan or arrangement contemplating the dissolution laws of a state of the United States and (y) such Successor Company is a U.S. certificated air carrier; and
(any such transaction being hereinafter sometimes referred to as iii) in the case of a "Reorganization") then, in each such caseSuccessor Company, the Holder of this OptionSuccessor Company shall (A) execute, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection contemporaneously with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganizationtransaction, and shall be binding upon the issuer of any such stock or other securities (includingagreements, if any, as are in the case reasonable opinion of any transfer the Administrative Agent, necessary to evidence the assumption by the Successor Company of properties or assets referred to above, the person acquiring all or substantially liability for all of the properties or assets obligations of the Borrower hereunder and the other Loan Documents and (B) cause to be delivered to the Administrative Agent and the Lenders such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as each Lender or the Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company. Upon any consolidation or merger in accordance with this Section 6.02(a) in any case in which the Borrower is not the surviving corporation, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such Successor Company had been named as the Borrower herein. No such consolidation or merger shall have the effect of releasing the Borrower or any Successor Company which theretofore shall have become a successor to the Borrower in the manner prescribed in this Section 6.02(a) from its liability with respect to any Loan Document to which it is a party.
(b) Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.#90303017v26 62
Appears in 1 contract
Merger, etc. If the Company shall (a) effect a reorganization, (b) Merge into or consolidate with any other Person, or permit any other Person to merge into any other personor consolidate with it, or sell, transfer, lease or otherwise dispose of (cin one transaction or in a series of transactions) transfer all or substantially all of its properties assets (in each case, whether now owned or assets to any hereafter acquired) unless: #10384414v15
(i) immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(ii) the Borrower is the surviving corporation or, if otherwise, (x) such other person Person or continuing corporation (the “Successor Company”) is a corporation or other entity organized under any plan or arrangement contemplating the dissolution laws of a state of the United States and (y) such Successor Company is a U.S. certificated air carrier; and
(any such transaction being hereinafter sometimes referred to as iii) in the case of a "Reorganization") then, in each such caseSuccessor Company, the Holder of this OptionSuccessor Company shall (A) execute, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection contemporaneously with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganizationtransaction, and shall be binding upon the issuer of any such stock or other securities (includingagreements, if any, as are in the case reasonable opinion of any transfer the Administrative Agent, necessary to evidence the assumption by the Successor Company of properties or assets referred to above, the person acquiring all or substantially liability for all of the properties or assets obligations of the Borrower hereunder and the other Loan Documents and (B) cause to be delivered to the Administrative Agent and the Lenders such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as each Lender or the Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company). If Upon any consolidation or merger in accordance with this Section 6.02(a) in any case in which the Acquiring Company has Borrower is not so agreed to continue this Optionthe surviving corporation, then the Successor Company shall give 30 days' prior written notice succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such Successor Company had been named as the Borrower herein. No such consolidation or merger shall have the effect of releasing the Borrower or any Successor Company which theretofore shall have become a successor to the Holder of Borrower in the manner prescribed in this Option of such ReorganizationSection 6.02(a) from its liability with respect to any Loan Document to which it is a party.
(b) Liquidate, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option wind up, or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on dissolve itself (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (suffer any liquidation or immediately prior theretodissolution), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 1 contract
Merger, etc. If the Company The Lessee shall (a) effect a reorganizationnot merge, (b) consolidate or liquidate ----------- with or merge into any other personinto, or (c) sell or transfer all or substantially all of its properties assets to, another Person (the Person surviving any such merger or consolidation, or the Person into which the Lessee is liquidated or which acquires all or substantially all assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any such transaction Lessee, being hereinafter sometimes referred to as a "Reorganization") then, in each such case, the Holder of this Option, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective DateSuccessor"), shall receive, in lieu of unless (i) the Shares issuable on such exercise prior Successor (if not the Lessee) unconditionally --------- and expressly assumes (pursuant to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing an agreement reasonably satisfactory in form and substance to the Holder that this Option Lessor) all the liabilities and obligations of the Lessee under the Basic Agreements to which the Lessee is a party, (ii) the Successor's net worth immediately after giving effect to such transaction would not be less than $290 million, (iii) immediately after giving effect to such transaction, no Event of Default or Specified Default shall continue in full force have occurred and effect be continuing, (iv) the Lessee shall have delivered to the Owner Trustee and the terms hereof Owner Participant a certificate signed by a Responsible Officer of the Lessee and an opinion of outside counsel, each stating that such merger, conveyance, transfer or lease and the assumption agreement referred to above comply with this Section 6.01(d) and that all conditions precedent herein provided for relating to such transaction have been complied with, (v) if such Successor is not a corporation, limited partnership, limited liability company or other legal entity organized in any of the states of the United States of America or the District of Columbia, the Lessee shall be applicable have delivered to the shares Owner Trustee and the Owner Participant an opinion of stock outside counsel stating that the filings and recordings listed in Schedule 3 hereto (as amended to reflect the identity of such Successor, and together with any additional filings and recordings made in connection with such merger, consolidation, liquidation or sale) continue to be effective to establish and perfect the Owner Trustee's right, title and interest in and to the Equipment and the Equipment Site and under the Lease and the Ground Lease to the same extent as when such filings and recordings were initially accomplished as contemplated by Section 6.01(l) hereof (but after giving effect to all transactions permitted under the Lease and the other securities Basic Agreements that shall have affected such right, title and property receivable on exercise after interest), and (vi) the Owner Trustee and the Owner Participant shall have received at least 15 days' prior notice of the proposed merger, consolidation, liquidation or sale, which notice shall specify the name and address of the proposed Successor and the facts necessary to determine whether such proposed Successor and such proposed merger, consolidation, liquidation or sale will comply with the provisions of this Section 6.01(d). Upon the consummation of any such Reorganizationtransaction in accordance with this Section 6.01(d), the Successor (if not the Lessee) shall succeed to, and be substituted for, and shall be binding upon entitled to exercise every right and power of, the issuer Lessee under the Basic Agreements to which the Lessee is a party with the same effect as if such Successor had been named as the Lessee therein, provided that notwithstanding such transaction, the Lessee shall not be released from its obligations under the Basic Agreements without the consent of the Owner Participant. The Owner Trustee agrees that it shall, to the extent so requested by the Lessee and at the Lessee's expense, use reasonable efforts to cooperate with the Lessee in effecting any merger, consolidation, liquidation or sale permitted by this Section 6.01(d); and, if requested by the Lessee or any surviving or acquiring entity party to such transaction, the Owner Trustee will give its written consent to any such stock or other securities (including, in transfer complying with the case of any transfer of properties or assets referred to above, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder provisions of this Option of such Reorganization, during which 30-day period (the "Notice Period"Section 6.01(d) the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholderspromptly after a request therefor.
Appears in 1 contract
Merger, etc. If the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other person, or (cb) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any such transaction being hereinafter sometimes referred to as a "Reorganization") then, in each such case, the Holder of this OptionWarrant, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this OptionWarrant, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, in the case of any transfer of properties or assets referred to above, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this OptionWarrant, then the Company shall give 30 days' prior written notice to the Holder of this Option Warrant of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option Warrant or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 the Expiry Date (or immediately prior thereto), such rate to be compounded annually through October 18, 2004the Expiry Date, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option Warrant shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option Warrant shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 1 contract
Sources: Unit Purchase Agreement (Tengtu International Corp)
Merger, etc. If the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other person, or (c) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any such transaction being hereinafter sometimes referred to as a "Reorganization") then, in each such case, the Holder of this Option, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, in the case of any transfer of properties or assets referred to above, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 181, 2004 (or immediately prior thereto), such rate to be compounded annually through October 181, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 1 contract
Sources: Common Stock Option Agreement (Western Media Group Corp)
Merger, etc. If the Company shall (a) effect a reorganization, (b) Merge into or consolidate with any other Person, or permit any other Person to merge into any other personor consolidate with it, or sell, transfer, lease or otherwise dispose of (cin one transaction or in a series of transactions) transfer all or substantially all of its properties assets (in each case, whether now owned or assets to any hereafter acquired) unless:
(i) immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(ii) the Borrower is the surviving corporation or, if otherwise, (x) such other person Person or continuing corporation (the “Successor Company”) is a corporation or other entity organized under any plan or arrangement contemplating the dissolution laws of a state of the United States and (y) such Successor Company is a U.S. certificated air carrier; and
(any such transaction being hereinafter sometimes referred to as iii) in the case of a "Reorganization") then, in each such caseSuccessor Company, the Holder of this OptionSuccessor Company shall (A) execute, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection contemporaneously with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganizationtransaction, and shall be binding upon the issuer of any such stock or other securities (includingagreements, if any, as are in the case reasonable opinion of any transfer the Administrative Agent, necessary to evidence the assumption by the Successor Company of properties or assets referred to above, the person acquiring all or substantially liability for all of the properties or assets obligations of the Borrower hereunder and the other Loan Documents and (B) cause to be delivered to the Administrative Agent and the Lenders such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as each Lender or the Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company). If Upon any consolidation or merger in accordance with this Section 6.02(a) in any case in which the Acquiring Company has Borrower is not so agreed to continue this Optionthe surviving corporation, then the Successor Company shall give 30 days' prior written notice succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such Successor Company had been named as the Borrower herein. No such consolidation or merger shall have the effect of releasing the Borrower or any Successor Company which theretofore shall have become a successor to the Holder of Borrower in the manner #1038422810384414v3315 prescribed in this Option of such ReorganizationSection 6.02(a) from its liability with respect to any Loan Document to which it is a party.
(b) Liquidate, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option wind up, or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on dissolve itself (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (suffer any liquidation or immediately prior theretodissolution), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 1 contract
Merger, etc. If the Company The following transactions shall (a) effect a reorganization, (b) consolidate with or merge into any other person, or (c) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any such transaction being hereinafter sometimes referred to as a "Reorganization") thenhave been consummated, in each such casecase on terms and conditions reasonably satisfactory to the Lenders:
(i) A certificate of merger governing the Merger that has been pre-approved by the Delaware Secretary of State to be in proper form for filing with an effective time stipulated therein of 12:01 a.m. on March 1, the Holder of this Option, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory 2014 in form and substance reasonably acceptable to the Holder Administrative Agent (the “Certificate of Merger”) shall have been filed simultaneously or substantively concurrently with the initial borrowing hereunder, and, except solely to the extent that this Option the Merger shall continue not become effective until the effective time stipulated in full force the Certificate of Merger, the Merger shall be consummated in accordance with applicable law and effect and on the terms hereof shall be applicable described in the Merger Agreement, without giving effect to any waiver or other modifications thereof or consents or request thereunder by or on behalf of the Borrowers that is materially adverse to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, in the case of any transfer of properties or assets referred to above, the person acquiring all or substantially all interests of the properties Lenders not approved by the Lead Arrangers (which approval shall not be unreasonably withheld or assets of the Companydelayed). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period ; provided that (the "Notice Period"w) the Holder at its option and upon written notice to the Company shall be able any change to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to definition of “Company Material Adverse Effect” contained in the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); Merger Agreement or (ii) the definition of “Cap” (or use thereof in connection with the working capital adjustment) contained in the Merger Agreement shall be deemed to be materially adverse to the Lenders, (x) any reduction in the Merger Consideration (as defined in the Merger Agreement) shall not be deemed to be materially adverse to the Lenders to the extent such decrease shall reduce on a dollar-for-dollar basis the Effective Dateamount of the Term Facility and (y) any increase in the Stock Merger Consideration (as defined in the Merger Agreement) or any increase in the Cash Merger Consideration (as defined in the Merger Agreement) not in excess of 10.0% shall not be deemed to be materially adverse to the Lenders to the extent such increase is not funded by additional debt;
(ii) the Administrative Agent shall have received certified copies of the Merger Agreement executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as reasonably requested by the Administrative Agent;
(iii) all amounts due or outstanding in respect of the Existing Credit Agreement shall have been (or substantially simultaneously or substantively concurrent with the initial borrowing hereunder shall be) paid in full, all commitments in respect thereof terminated and all guarantees thereof and security therefor discharged and released and the Administrative Agent shall have received satisfactory evidence with respect thereto. After giving effect to the Merger, the Holder Refinancing and all related transactions, the Company and its subsidiaries shall have outstanding no indebtedness or preferred stock other than (a) the loans and other extensions of this Option credit hereunder and (b) Indebtedness permitted under Section 7.2(d) and the Convertible Notes in an aggregate principal amount not to exceed $200,000,000;
(iv) since the December 18, 2013, there shall not have occurred or exist any Merger Material Adverse Effect;
(v) the Specified Merger Agreement Representations shall be paid an amount true and correct.
(vi) the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount Specified Representations shall be payable true and correct in the same form all material respects; provided that any Specified Representation that is qualified as the common stockholders of the Company to “materiality”, “Material Adverse Effect” or similar language shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined true and correct in good faith by the Board of Directors of the Company, as approved by the Company's stockholdersall respects.
Appears in 1 contract
Merger, etc. If the Company shall (a) effect a reorganization, (b) Merge into or consolidate with any other Person, or permit any other Person to merge into any other personor consolidate with it, or sell, transfer, lease or otherwise dispose of (cin one transaction or in a series of transactions) transfer all or substantially all of its properties assets (in each case, whether now owned or assets to any hereafter acquired) unless:
(i) immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(ii) the Borrower is the surviving corporation or, if otherwise, (x) such other person Person or continuing corporation (the “Successor Company”) is a corporation or other entity organized under any plan or arrangement contemplating the dissolution laws of a state of the United States and (y) such Successor Company is a U.S. certificated air carrier; and
(any such transaction being hereinafter sometimes referred to as iii) in the case of a "Reorganization") then, in each such caseSuccessor Company, the Holder of this OptionSuccessor Company shall (A) execute, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection contemporaneously with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganizationtransaction, and shall be binding upon the issuer of any such stock or other securities (includingagreements, if any, as are in the case reasonable opinion of any transfer the Administrative Agent, necessary to evidence the assumption by the Successor Company of properties or assets referred to above, the person acquiring all or substantially liability for all of the properties or assets obligations of the Borrower hereunder and the other Loan Documents and (B) cause to be delivered to the Administrative Agent and the Lenders such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as each Lender or the Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company). If Upon any consolidation or merger in accordance with this Section 6.02(a) in any case in which the Acquiring Company has Borrower is not so agreed to continue this Optionthe surviving corporation, then the Successor Company shall give 30 days' prior written notice succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such Successor Company had been named as the Borrower herein. No such consolidation or merger shall have the effect of releasing the Borrower or any Successor Company which theretofore shall have become a successor to the Holder of Borrower in the manner prescribed in this Option of such ReorganizationSection 6.02(a) from its liability with respect to any Loan Document to which it is a party.
(b) Liquidate, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option wind up, or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on dissolve itself (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (suffer any liquidation or immediately prior theretodissolution), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 1 contract
Merger, etc. If the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other person, or (cb) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any such transaction being hereinafter sometimes referred to as a "“Reorganization"”) then, in each such case, the Holder of this OptionHolder, on the exercise hereof as provided in Section 2 2, at any time after the consummation or effective date of such Reorganization (the "“Effective Date"”), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective dateEffective Date, the stock and Other Securities and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this OptionWarrant, immediately prior thereto. The successor corporation entity in any such Reorganization described in clause (b) or (c) above Reorganization, where the Company will not be the surviving entity (the "“Acquiring Company") ”), must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and Other Securities and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities Other Securities (including, in the case of any transfer of properties or assets referred to above, the person acquiring all or substantially all of the properties or assets of the Company). If the Acquiring Company has not so agreed to continue this OptionWarrant, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "“Notice Period"”) the Holder at its the Holder's option and upon written notice to the Company shall be able to (i) exercise this Option Warrant or any part thereof at an exercise price (the "“Discounted Exercise Price"”) equal to the then prevailing purchase price Purchase Price hereunder discounted at the Discount Rate (as used herein the "“Discount Rate" ” shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 the Expiry Date (or immediately prior thereto), such rate to be compounded annually through October 18, 2004the Expiry Date, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "“Merger Profit Amount"”) equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above above, and the Option Warrant shall simultaneously thereafter expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Companycash. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholdersCompany relying upon a good faith independent appraisal of such noncash property.
Appears in 1 contract
Sources: Common Stock Purchase Warrant (Oxis International Inc)
Merger, etc. If the Company shall (a) effect a reorganization, (b) Merge into or consolidate with any other Person, or permit any other Person to merge into any other personor consolidate with it, or sell, transfer, lease or otherwise dispose of (cin one transaction or in a series of transactions) transfer all or substantially all of its properties assets (in each case, whether now owned or assets to any hereafter acquired) unless:
(i) immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(ii) the Borrower is the surviving corporation or, if otherwise, (x) such other person Person or continuing corporation (the “Successor Company”) is a corporation or other entity organized under any plan or arrangement contemplating the dissolution laws of a state of the United States and (y) such Successor Company is a U.S. certificated air carrier; and
(any such transaction being hereinafter sometimes referred to as iii) in the case of a "Reorganization") then, in each such caseSuccessor Company, the Holder of this OptionSuccessor Company shall (A) execute, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection contemporaneously with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganizationtransaction, and shall be binding upon the issuer of any such stock or other securities (includingagreements, if any, as are in the case reasonable opinion of any transfer the Administrative Agent, necessary to evidence the assumption by the Successor Company of properties or assets referred to above, the person acquiring all or substantially liability for all of the properties or assets obligations of the Borrower hereunder and the other Loan Documents and (B) cause to be delivered to the Administrative Agent and the Lenders such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as each Lender or the Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company). If Upon any consolidation or merger in accordance with this Section 6.02(a) in any case in which the Acquiring Company has Borrower is not so agreed to continue this Optionthe surviving corporation, then the Successor Company shall give 30 days' prior written notice succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such Successor Company had been named as the Borrower herein. No such consolidation or merger shall have the effect of releasing the Borrower or any Successor Company which theretofore shall have become a successor to the Holder of Borrower in the manner prescribed in this Option of such ReorganizationSection 6.02(a) from its liability with respect to any Loan Document to which it is a party.
(b) Liquidate, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option wind up, or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on dissolve itself (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (suffer any liquidation or immediately prior theretodissolution), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 1 contract
Merger, etc. If the Company The following transactions shall (a) effect a reorganization, (b) consolidate with or merge into any other person, or (c) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company (any such transaction being hereinafter sometimes referred to as a "Reorganization") thenhave been consummated, in each such casecase on terms and conditions reasonably satisfactory to the Lenders:
(i) LFS-Merger Sub, Inc., a wholly owned subsidiary of Holdings, shall have merged with and into the Borrower pursuant to the Merger Documents (the “Merger”) and no provision of the Merger Agreement or any material provision of any other Merger Document shall have been waived, amended, supplemented or otherwise modified in a manner materially adverse to the Lenders without the approval of the Administrative Agent;
(ii) the Borrower shall have at least $164,500,000 in equity, which shall include preferred equity of Holdings issued to the Sponsors and certain members of the current management team of the Borrower (the cash portion of which shall have been contributed by Holdings to the Borrower in exchange for common equity);
(iii) the Borrower shall have received at least $149,712,000 in gross cash proceeds from the issuance of the Senior Subordinated Notes;
(iv) the Administrative Agent shall have received satisfactory evidence that all Indebtedness owing in respect of the Existing Credit Agreement (other than the Existing Letters of Credit) shall have been paid in full, the Holder Existing Credit Agreement shall have been terminated, and satisfactory arrangements shall have been made for the termination of this Optionall Liens granted in connection therewith; and
(v) the Borrower (A) shall have consummated a tender offer and consent solicitation with respect to the outstanding Existing Notes (the “Tender Offer and Consent Solicitation”), pursuant to which (1) the Borrower shall have offered, subject to the terms and conditions contained in the Tender Offer and Consent Solicitation Materials, to purchase all of the outstanding Existing Notes plus accrued and unpaid interest thereon and (2) consents shall have been solicited to a proposed amendment to the Existing Indenture (the “Existing Indenture Amendment”) on terms and conditions set forth in the exercise hereof as provided Tender Offer and Consent Solicitation Materials, (3) the period of time for tendering Existing Notes pursuant to the Tender Offer and Consent Solicitation shall have terminated, (4) the Borrower shall have received sufficient consents to authorize the execution and delivery of the Existing Indenture Amendment, (5) the Borrower and the trustee under the Existing Indenture shall have duly executed and delivered the Existing Indenture Amendment and the same shall have become effective in Section 2 at any time accordance with its terms and the terms of the Existing Indenture, (6) the Borrower shall have (or shall have caused to have been) purchased all of the Existing Notes validly tendered, and not theretofore withdrawn, pursuant to the Tender Offer and Consent Solicitation, (7) the Borrower shall have issued irrevocable redemptions notices in accordance with the Existing Indenture to redeem all of the Outstanding Existing Notes, which redemption shall occur on a date not later than 60 days after the consummation or effective date issuance of such Reorganization notices and (8) the "Effective Date")Administrative Agent shall have received evidence, shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance reasonably satisfactory to it, that the Holder that matters set forth above in this Option clause (v) have been satisfied as of the Closing Date or (B) shall continue have otherwise satisfied or discharged the Indebtedness owing in full force and effect and respect of the terms hereof shall be applicable Existing Notes in such a manner which has not (1) resulted in any qualification to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganization, and shall be binding upon the issuer of any such stock or other securities (including, an enforceability opinion contained in the case of any transfer of properties or assets referred opinions delivered pursuant to above, Section 5.1(j) and (2) has not prevented the person acquiring all or substantially all trustee under the Existing Indenture from acknowledging the discharge of the properties or assets obligations owing in respect of the Company). If the Acquiring Company has not so agreed to continue this Option, then the Company shall give 30 days' prior written notice to the Holder of this Option of such Reorganization, during which 30-day period (the "Notice Period"Existing Notes in accordance with Section 8.1(b) the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (or immediately prior thereto), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholdersExisting Indenture.
Appears in 1 contract
Merger, etc. If the Company shall (a) effect a reorganization, (b) Merge into or consolidate with any other Person, or permit any other Person to merge into any other personor consolidate with it, or sell, transfer, lease or otherwise dispose of (cin one transaction or in a series of transactions) transfer all or substantially all of its properties assets (in each case, whether now owned or assets to any hereafter acquired) unless: #10384228v33
(i) immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(ii) the Borrower is the surviving corporation or, if otherwise, (x) such other person Person or continuing corporation (the “Successor Company”) is a corporation or other entity organized under any plan or arrangement contemplating the dissolution laws of a state of the United States and (y) such Successor Company is a U.S. certificated air carrier; and
(any such transaction being hereinafter sometimes referred to as iii) in the case of a "Reorganization") then, in each such caseSuccessor Company, the Holder of this OptionSuccessor Company shall (A) execute, on the exercise hereof as provided in Section 2 at any time after the consummation or effective date of such Reorganization (the "Effective Date"), shall receive, in lieu of the Shares issuable on such exercise prior to such consummation or such effective date, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection contemporaneously with such dissolution, as the case may be, if the Holder had so exercised this Option, immediately prior thereto. The successor corporation in any such Reorganization described in clause (b) or (c) above where the Company will not be the surviving entity (the "Acquiring Company") must agree prior to such Reorganization in a writing satisfactory in form and substance to the Holder that this Option shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on exercise after the consummation of such Reorganizationtransaction, and shall be binding upon the issuer of any such stock or other securities (includingagreements, if any, as are in the case reasonable opinion of any transfer the Administrative Agent, necessary to evidence the assumption by the Successor Company of properties or assets referred to above, the person acquiring all or substantially liability for all of the properties or assets obligations of the Borrower hereunder and the other Loan Documents and (B) cause to be delivered to the Administrative Agent and the Lenders such legal opinions (which may be from in-house counsel) as any of them may reasonably request in connection with the matters specified in the preceding clause (A) and (C) provide such information as each Lender or the Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Successor Company). If Upon any consolidation or merger in accordance with this Section 6.02(a) in any case in which the Acquiring Company has Borrower is not so agreed to continue this Optionthe surviving corporation, then the Successor Company shall give 30 days' prior written notice succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such Successor Company had been named as the Borrower herein. No such consolidation or merger shall have the effect of releasing the Borrower or any Successor Company which theretofore shall have become a successor to the Holder of Borrower in the manner prescribed in this Option of such ReorganizationSection 6.02(a) from its liability with respect to any Loan Document to which it is a party.
(b) Liquidate, during which 30-day period (the "Notice Period") the Holder at its option and upon written notice to the Company shall be able to (i) exercise this Option wind up, or any part thereof at an exercise price (the "Discounted Exercise Price") equal to the then prevailing purchase price hereunder discounted at the Discount Rate (as used herein the "Discount Rate" shall mean the then prevailing interest rate on U.S. Treasury Notes issued on dissolve itself (or immediately prior to) the date of such 30-day notice and maturing on October 18, 2004 (suffer any liquidation or immediately prior theretodissolution), such rate to be compounded annually through October 18, 2004, and in no event to be less than 10% annually); or (ii) on the Effective Date, the Holder of this Option shall be paid an amount (the "Merger Profit Amount") equal to the difference between the fair market value per share of Common Stock of the Company being purchased by the Acquiring Company in the Reorganization and the Discounted Exercise Price described in clause (i) above and the Option shall simultaneously expire. The Merger Profit Amount shall be payable in the same form as the common stockholders of the Company shall be paid by the Acquiring Company for their shares of common stock of the Company. The fair market value of any noncash property received from the Acquiring Company upon the Reorganization shall be determined in good faith by the Board of Directors of the Company, as approved by the Company's stockholders.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Delta Air Lines, Inc.)