Other Prepayments. (a) Prepayment at the Option of the Company. (i) At any time following the Original Issue Date and prior to the Maturity Date, upon delivery of a written notice to the Holder (a "Company Prepayment Notice" and the date such notice is delivered by the Company, the "Company Notice Date"), the Company shall be entitled to prepay a principal amount of Secured Debentures equal to the lesser of (x) the aggregate outstanding principal amount of Secured Debentures then held by the Holder and (y) the principal amount of Secured Debentures which may be converted without violation of Section 6(d)(i), in either case, for an amount in cash equal to the Company Prepayment Price. The Holder may convert any portion of the outstanding principal amount of the Secured Debentures subject to a Company Prepayment Notice prior to the date that the Company Prepayment Price is due and paid in full. Once delivered, the Company shall not be entitled to rescind a Company Prepayment Notice. (ii) The Company Prepayment Price shall be due on the 30th Trading Day immediately following the Company Notice Date. Any such prepayment shall be free of any claim of subordination. If any portion of the Company Prepayment Price shall not be timely paid by the Company, interest shall accrue thereon at the rate of 12% per annum (or the maximum rate permitted by applicable law, whichever is less) until the Company Prepayment Price plus all such interest is paid in full, which payment shall constitute liquidated damages and not a penalty. In addition, if any portion of the Company Prepayment Price remains unpaid after such date, the Holder subject to such prepayment may elect by written notice to the Company to invalidate ab initio such Company Prepayment Notice with respect to the unpaid amount, notwithstanding anything herein contained to the contrary. If the Holder makes such an election, this Secured Debenture shall be reinstated with respect to such unpaid amount and the Company shall no longer have any prepayment rights under this Section 9. (b) Prepayment at the Option of the Holder. (i) At any time following September 30, 2003 and prior to the Maturity Date, the Holder shall have the right, exercisable at the sole option of the Holder, and by delivery of a written notice (a "Holder Prepayment Notice" and the date such notice is delivered by the Holder, the "Holder Notice Date") to the Company, to require the Company to prepay all or a portion of the Secured Debentures then held by the Holder for an amount in cash, equal to the Holder Prepayment Price which shall be due and payable on the 20th Trading Day following the Holder Notice Date. Notwithstanding anything herein to the contrary, the Holder shall only be entitled to deliver a Holder Prepayment Notice pursuant to the terms hereof if: (x) on or prior to September 30, 2003, there has not occurred an automatic exchange pursuant to Section 7 hereof for a minimum of $3,000,000 of aggregate principal amount of Secured Debentures, provided, that such date shall be extended to December 31, 2003 if the Company shall have filed the first Additional Registration Statement with the Commission, (y) on or prior to March 31, 2004, there have not occurred automatic exchanges pursuant to Section 7 hereof for a minimum of $6,000,000 of aggregate principal amount of Secured Debentures or (z) on or prior to September 30, 2004, there have not occurred automatic exchanges pursuant to Section 7 hereof for all of the original principal amount of Secured Debentures. (ii) In addition to prepayment rights under Section 9(b)(i), if an Additional Registration Statement filed pursuant to the Registration Rights Agreement in connection with the occurrence of the event described in Section 7(a)(x) has been not been declared effective by the Commission by its applicable Effectiveness Date (as defined in the Registration Rights Agreement), the Holder shall have the right, exercisable at the sole option of the Holder, and by delivery of Holder Prepayment Notice to the Company, to require the Company to prepay all or a portion of the Secured Debentures then held by the Holder for an amount in cash, equal to the Holder Prepayment Price which shall be due and payable on the 20th Trading Day following the Holder Notice Date. (iii) If any portion of the Holder Prepayment Price due pursuant to the terms hereof remains unpaid after the 20th Trading Day following the Holder Notice Date, the Holder may elect by written notice to the Company to invalidate ab initio such Holder Prepayment Notice with respect to the unpaid amount, notwithstanding anything herein contained to the contrary. If the Holder makes such an election, this Secured Debenture shall be reinstated with respect to such unpaid amount. For purposes of this Section 9, principal amount of Secured Debentures shall remain outstanding until such date as the Holder shall have received Underlying Shares upon a conversion (or attempted conversion) thereof that meets the requirements hereof. The Holder may convert any portion of the outstanding principal amount of the Secured Debentures subject to a prepayment hereunder prior to the date that the Holder Prepayment Price is due and paid in full.
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Other Prepayments. (a) Prepayment at the Option of the Company.
(i) At any time following the Original Issue Date and prior to the Maturity Date, upon delivery of a written notice to the Holder (a "Company Prepayment NoticeCOMPANY PREPAYMENT NOTICE" and the date such notice is delivered by the Company, the "Company Notice DateCOMPANY NOTICE DATE"), the Company shall be entitled to prepay a principal amount of Secured Debentures equal to the lesser of (x) the aggregate outstanding principal amount of Secured Debentures then held by the Holder and (y) the principal amount of Secured Debentures which may be converted without violation of Section 6(d)(i), in either case, for an amount in cash equal to the Company Prepayment Price. Notwithstanding anything herein to the contrary, the Company shall only be entitled to deliver a Company Prepayment Notice pursuant to the terms hereof if the Equity Conditions are satisfied with respect to all shares of Common Stock issuable upon a Company Notice Date. If any of Equity Conditions shall cease to be in effect during the period between the Company Notice Date and the date the Company Prepayment Price is paid in full, then the Holder subject to such prepayment may elect, by written notice to the Company given at any time after any of the Equity Conditions shall cease to be in effect, to invalidate ab initio such optional prepayment, notwithstanding anything herein contained to the contrary. The Holder may convert any portion of the outstanding principal amount of the Secured Debentures subject to a Company Prepayment Notice prior to the date that the Company Prepayment Price is due and paid in full. Once delivered, the Company shall not be entitled to rescind a Company Prepayment Notice.
(ii) The Company Prepayment Price shall be due on the 30th 20th Trading Day immediately following the Company Notice Date. Any such prepayment shall be free of any claim of subordination. If any portion of the Company Prepayment Price shall not be timely paid by the Company, interest shall accrue thereon at the rate of 12% per annum (or the maximum rate permitted by applicable law, whichever is less) until the Company Prepayment Price plus all such interest is paid in full, which payment shall constitute liquidated damages and not a penalty. In addition, if any portion of the Company Prepayment Price remains unpaid after such date, the Holder subject to such prepayment may elect by written notice to the Company to invalidate ab initio such Company Prepayment Notice with respect to the unpaid amount, notwithstanding anything herein contained to the contrary. If the Holder makes such an election, this Secured Debenture shall be reinstated with respect to such unpaid amount and the Company shall no longer have any prepayment rights under this Section 98.
(b) Prepayment at the Option of the Holder.
(i) At any time following September 30, 2003 the Effective Date and prior to the Maturity Date, the Holder shall have the right, exercisable at the sole option of the Holder, and by delivery of a written notice (a "Holder Prepayment NoticeHOLDER PREPAYMENT NOTICE" and the date such notice is delivered by the Holder, the "Holder Notice DateHOLDER NOTICE DATE") to the Company, to require the Company to prepay all or a portion of the Secured Debentures then held by the Holder for an amount in cash, equal to the Holder Prepayment Price which shall be due and payable on the 20th Trading Day following the delivery of the Holder Prepayment Notice Dateby the Holder. Notwithstanding anything herein to the contrary, the Holder shall only be entitled to deliver a Holder Prepayment Notice pursuant to the terms hereof ifif either: (x) on or prior to September 30during the eighteen (18) months immediately following the Closing Date, 2003, there the Holder has not occurred an automatic exchange pursuant to Section 7 hereof for a minimum of $3,000,000 of aggregate principal amount of Secured Debentures, provided, that such date shall be extended to December 31, 2003 if the Company shall have filed the first Additional Registration Statement with the Commission, (y) on or prior to March 31, 2004, there have not occurred automatic exchanges pursuant to Section 7 hereof for a minimum of $6,000,000 of aggregate principal amount of Secured Debentures or (z) on or prior to September 30, 2004, there have not occurred automatic exchanges pursuant to Section 7 hereof for all converted [more than 66 2/3% of the original principal amount of Secured Debentures.
(iiDebentures issued to it on the Original Issue Date](14) In addition to prepayment rights under Section 9(b)(i), if an Additional Registration Statement filed pursuant to the Registration Rights Agreement in connection with the occurrence [more than 66 2/3% of the event described in Section 7(a)(x) has been not been declared effective by original principal amount of Initial Debentures issued to it on the Commission by its applicable Effectiveness Initial Settlement Date (as defined in the Registration Rights Agreement)Purchase Agreement)](15) or (y) at any time prior to the Maturity Date, the Holder Company shall have issue shares of Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock other than (A) a grant of an option or warrant for Common Stock or issuance of any shares of Common Stock upon the rightexercise of any options or warrants to employees, exercisable at officers and directors of or consultants to the sole Company pursuant to any stock option plan, employee stock purchase plan or similar plan or incentive or consulting arrangement approved by the Company's board of directors or (B) any issuances of Common Stock or Common Stock Equivalents to a Person which is or will be, itself or through its subsidiaries, an operating company in a business related to or complementary with the business of the Holder, Company and by delivery of Holder Prepayment Notice in which the Company receives reasonably material benefits in addition to the Companyinvestment of funds, to require but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to prepay all or a portion of the Secured Debentures then held by the Holder for an amount entity whose primary business is investing in cash, equal to the Holder Prepayment Price which shall be due and payable on the 20th Trading Day following the Holder Notice Datesecurities.
(iiiii) If any portion of the Holder Prepayment Price due pursuant to the terms hereof remains unpaid after the 20th Trading Day following the Holder Notice Datesuch date, the Holder may elect by written notice to the Company to invalidate ab initio such Holder Prepayment Notice with respect to the unpaid amount, notwithstanding anything herein contained to the contrary. If the Holder makes such an election, this Secured Debenture shall be reinstated with respect to such unpaid amount. For purposes of this Section 98, principal amount of Secured Debentures shall remain outstanding until such date as the Holder shall have received Underlying Shares upon a conversion (or attempted conversion) thereof that meets the requirements hereof. The Holder may convert any portion of the outstanding principal amount of the Secured Debentures subject to a prepayment hereunder prior to the date that the Holder Prepayment Price is due and paid in full.
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Other Prepayments. (a) Prepayment at the Option of the Company.
(i) At any time following the Original Issue Date and prior to the Maturity Date, upon delivery of a written notice to the Holder (a "“Company Prepayment Notice" ” and the date such notice is delivered by the Company, the "“Company Notice Date"”), the Company shall be entitled to prepay a principal amount of Secured Debentures equal to the lesser of (x) the aggregate outstanding principal amount of Secured Debentures then held by the Holder and (y) the principal amount of Secured Debentures which may be converted without violation of Section 6(d)(i), in either case, for an amount in cash equal to the Company Prepayment Price. The Holder may convert any portion of the outstanding principal amount of the Secured Debentures subject to a Company Prepayment Notice prior to the date that the Company Prepayment Price is due and paid in full. Once delivered, the Company shall not be entitled to rescind a Company Prepayment Notice.
(ii) The Company Prepayment Price shall be due on the 30th Trading Day immediately following the Company Notice Date. Any such prepayment shall be free of any claim of subordination. If any portion of the Company Prepayment Price shall not be timely paid by the Company, interest shall accrue thereon at the rate of 12% per annum (or the maximum rate permitted by applicable law, whichever is less) until the Company Prepayment Price plus all such interest is paid in full, which payment shall constitute liquidated damages and not a penalty. In addition, if any portion of the Company Prepayment Price remains unpaid after such date, the Holder subject to such prepayment may elect by written notice to the Company to invalidate ab initio such Company Prepayment Notice with respect to the unpaid amount, notwithstanding anything herein contained to the contrary. If the Holder makes such an election, this Secured Debenture shall be reinstated with respect to such unpaid amount and the Company shall no longer have any prepayment rights under this Section 9.
(b) Prepayment at the Option of the Holder.
(i) At any time following September 30, 2003 and prior to the Maturity Date, the Holder shall have the right, exercisable at the sole option of the Holder, and by delivery of a written notice (a "Holder Prepayment Notice" and the date such notice is delivered by the Holder, the "Holder Notice Date") to the Company, to require the Company to prepay all or a portion of the Secured Debentures then held by the Holder for an amount in cash, equal to the Holder Prepayment Price which shall be due and payable on the 20th Trading Day following the Holder Notice Date. Notwithstanding anything herein to the contrary, the Holder shall only be entitled to deliver a Holder Prepayment Notice pursuant to the terms hereof if: (x) on or prior to September 30, 2003, there has not occurred an automatic exchange pursuant to Section 7 hereof for a minimum of $3,000,000 of aggregate principal amount of Secured Debentures, provided, that such date shall be extended to December 31, 2003 if the Company shall have filed the first Additional Registration Statement with the Commission, (y) on or prior to March 31, 2004, there have not occurred automatic exchanges pursuant to Section 7 hereof for a minimum of $6,000,000 of aggregate principal amount of Secured Debentures or (z) on or prior to September 30, 2004, there have not occurred automatic exchanges pursuant to Section 7 hereof for all of the original principal amount of Secured Debentures.
(ii) In addition to prepayment rights under Section 9(b)(i), if an Additional Registration Statement filed pursuant to the Registration Rights Agreement in connection with the occurrence of the event described in Section 7(a)(x) has been not been declared effective by the Commission by its applicable Effectiveness Date (as defined in the Registration Rights Agreement), the Holder shall have the right, exercisable at the sole option of the Holder, and by delivery of Holder Prepayment Notice to the Company, to require the Company to prepay all or a portion of the Secured Debentures then held by the Holder for an amount in cash, equal to the Holder Prepayment Price which shall be due and payable on the 20th Trading Day following the Holder Notice Date.
(iii) If any portion of the Holder Prepayment Price due pursuant to the terms hereof remains unpaid after the 20th Trading Day following the Holder Notice Date, the Holder may elect by written notice to the Company to invalidate ab initio such Holder Prepayment Notice with respect to the unpaid amount, notwithstanding anything herein contained to the contrary. If the Holder makes such an election, this Secured Debenture shall be reinstated with respect to such unpaid amount. For purposes of this Section 9, principal amount of Secured Debentures shall remain outstanding until such date as the Holder shall have received Underlying Shares upon a conversion (or attempted conversion) thereof that meets the requirements hereof. The Holder may convert any portion of the outstanding principal amount of the Secured Debentures subject to a prepayment hereunder prior to the date that the Holder Prepayment Price is due and paid in full.
Appears in 1 contract
Other Prepayments. (a) Prepayment at the Option of the Company.
(i) At any time following the Original Issue Date and prior to the Maturity Date, upon delivery of a written notice to the Holder (a "Company Prepayment Notice" and the date such notice is delivered by the Company, the "Company Notice Date"), the Company shall be entitled to prepay a principal amount of Secured Exchange Debentures equal to the lesser of (x) the aggregate outstanding principal amount of Secured Exchange Debentures then held by the Holder and (y) the principal amount of Secured Exchange Debentures which may be converted without violation of Section 6(d)(i), in either case, for an amount in cash equal to the Company Prepayment Price. Notwithstanding anything herein to the contrary, the Company shall only be entitled to deliver a Company Prepayment Notice pursuant to the terms hereof if the Equity Conditions are satisfied with respect to all shares of Common Stock issuable upon a Company Notice Date. If any of Equity Conditions shall cease to be in effect during the period between the Company Notice Date and the date the Company Prepayment Price is paid in full, then the Holder subject to such prepayment may elect, by written notice to the Company given at any time after any of the Equity Conditions shall cease to be in effect, to invalidate ab initio such optional prepayment, notwithstanding anything herein contained to the contrary. The Holder may convert any portion of the outstanding principal amount of the Secured Exchange Debentures subject to a Company Prepayment Notice prior to the date that the Company Prepayment Price is due and paid in full. Once delivered, the Company shall not be entitled to rescind a Company Prepayment Notice.
(ii) The Company Prepayment Price shall be due on the 30th Trading Day immediately following the Company Notice Date. Any such prepayment shall be free of any claim of subordination. If any portion of the Company Prepayment Price shall not be timely paid by the Company, interest shall accrue thereon at the rate of 12% per annum (or the maximum rate permitted by applicable law, whichever is less) until the Company Prepayment Price plus all such interest is paid in full, which payment shall constitute liquidated damages and not a penalty. In addition, if any portion of the Company Prepayment Price remains unpaid after such date, the Holder subject to such prepayment may elect by written notice to the Company to invalidate ab initio such Company Prepayment Notice with respect to the unpaid amount, notwithstanding anything herein contained to the contrary. If the Holder makes such an election, this Secured Exchange Debenture shall be reinstated with respect to such unpaid amount and the Company shall no longer have any prepayment rights under this Section 9.
(b) Prepayment at the Option of the Holder.
(i) At any time following September 30, 2003 and prior to the Maturity Date, the Holder shall have the right, exercisable at the sole option of the Holder, and by delivery of a written notice (a "Holder Prepayment Notice" and the date such notice is delivered by the Holder, the "Holder Notice Date") to the Company, to require the Company to prepay all or a portion of the Secured Debentures then held by the Holder for an amount in cash, equal to the Holder Prepayment Price which shall be due and payable on the 20th Trading Day following the Holder Notice Date. Notwithstanding anything herein to the contrary, the Holder shall only be entitled to deliver a Holder Prepayment Notice pursuant to the terms hereof if: (x) on or prior to September 30, 2003, there has not occurred an automatic exchange pursuant to Section 7 hereof for a minimum of $3,000,000 of aggregate principal amount of Secured Debentures, provided, that such date shall be extended to December 31, 2003 if the Company shall have filed the first Additional Registration Statement with the Commission, (y) on or prior to March 31, 2004, there have not occurred automatic exchanges pursuant to Section 7 hereof for a minimum of $6,000,000 of aggregate principal amount of Secured Debentures or (z) on or prior to September 30, 2004, there have not occurred automatic exchanges pursuant to Section 7 hereof for all of the original principal amount of Secured Debentures.
(ii) In addition to prepayment rights under Section 9(b)(i), if an Additional Registration Statement filed pursuant to the Registration Rights Agreement in connection with the occurrence of the event described in Section 7(a)(x) has been not been declared effective by the Commission by its applicable Effectiveness Date (as defined in the Registration Rights Agreement), the Holder shall have the right, exercisable at the sole option of the Holder, and by delivery of Holder Prepayment Notice to the Company, to require the Company to prepay all or a portion of the Secured Debentures then held by the Holder for an amount in cash, equal to the Holder Prepayment Price which shall be due and payable on the 20th Trading Day following the Holder Notice Date.
(iii) If any portion of the Holder Prepayment Price due pursuant to the terms hereof remains unpaid after the 20th Trading Day following the Holder Notice Date, the Holder may elect by written notice to the Company to invalidate ab initio such Holder Prepayment Notice with respect to the unpaid amount, notwithstanding anything herein contained to the contrary. If the Holder makes such an election, this Secured Debenture shall be reinstated with respect to such unpaid amount. For purposes of this Section 9, principal amount of Secured Debentures shall remain outstanding until such date as the Holder shall have received Underlying Shares upon a conversion (or attempted conversion) thereof that meets the requirements hereof. The Holder may convert any portion of the outstanding principal amount of the Secured Debentures subject to a prepayment hereunder prior to the date that the Holder Prepayment Price is due and paid in full.[intentionally left blank]
Appears in 1 contract
