Ownership Caps. (a) The Company shall not issue to Lender any Warrants (other than Blocked Warrants pursuant to Section 4.1(b) above) or shares of Common Stock under this Agreement until such time when such shares (including shares issuable upon exercise of the Warrants) proposed to be issued, when aggregated with all other shares then owned beneficially (as calculated pursuant to (i) Section 13(d) of the Securities Exchange Act of 1934 and Rule 13d-3 promulgated thereunder and (ii) the rules and regulations of the NASDAQ Stock Market ) by Lender would not result in the beneficial ownership by Lender of more than 9.99% of the then issued and outstanding shares of Common Stock (the “9.99% Ownership Cap”), without the prior written consent of Lender. The Ownership Cap shall be appropriately adjusted for any stock dividend, stock split, reverse stock split or similar transaction. (b) The Company shall not increase the number of shares of Common Stock that may be acquired pursuant to Section 10 of the form of warrant attached hereto as Exhibit B (the “Warrant Reset”) until such time when the shares issuable upon exercise of the such Warrants, when aggregated with all other shares acquired through this financing by Lender and the investors in the Concurrent Financing (in the aggregate as a whole) would not result in the beneficial ownership by Lender and the investors in the Concurrent Financing (in the aggregate as a whole) of more than 19.99% of the issued and outstanding shares of Common Stock (the “19.99 Ownership Cap”, and together with the 9.99% Ownership Cap, the “Ownership Cap”) on the date hereof giving effect to such Warrant Reset as if the exercise price resulting from such Warrant Reset had been in effect on the date hereof, unless stockholder approval is obtained by the Company to issue the shares of Common Stock in excess of the Ownership Cap. The Ownership Cap shall be appropriately adjusted for any stock dividend, stock split, reverse stock split or similar transaction. The requisite vote for obtaining stockholder approval as contemplated by this Agreement shall be calculated as required by the rules and regulations of the NASDAQ Stock Market.
Appears in 1 contract
Ownership Caps. Notwithstanding anything to the contrary in this Indenture:
(aA) The Company shall not issue no holder will be entitled to Lender any Warrants receive Common Shares upon conversion of Securities to the extent (other than Blocked Warrants pursuant but only to Section 4.1(bthe extent) above) that such receipt would cause such converting holder to become, directly or shares indirectly, a ‘‘beneficial owner’’ (within the meaning of Common Stock under this Agreement until such time when such shares (including shares issuable upon exercise of the Warrants) proposed to be issued, when aggregated with all other shares then owned beneficially (as calculated pursuant to (i) Section 13(d) of the Securities Exchange Act of 1934 and Rule 13d-3 promulgated thereunder and (ii) the rules and regulations promulgated thereunder) of more than 19.9% of the NASDAQ Stock Market Common Shares outstanding at such time (the “limitation”) for the avoidance of doubt, such beneficial ownership shall include the beneficial ownership of any persons acting as a “group”, within the meaning of Rule 13d-5, with such converting holder. Any conversion notice provided by Lender such converting holder shall constitute the converting holder’s confirmation that the conversion of the amount of the Securities sought in the conversion notice will not result in the converting holder becoming the beneficial owner of more Common Shares than permitted by the limitation. Any purported delivery of Common Shares upon conversion of Securities shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting holder becoming the beneficial owner of more than the limitation. If any delivery of Common Shares owed to a holder upon conversion of Securities is not made, in whole or in part, as a result of the limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such Common Shares as promptly as practicable after any such converting holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 19.9% of Common Shares outstanding at such time. The limitation shall no longer apply following the effective date of any Fundamental Change;
(B) Citadel Equity Fund Ltd. and its Affiliates will not be entitled to receive Common Shares upon conversion of Securities to the extent (but only to the extent) that such receipt would cause Citadel Equity Fund Ltd. and its Affiliates to become, directly or indirectly, a ‘‘beneficial owner’’ (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 4.9% of the Common Shares outstanding at such time (the “Citadel limitation”); for the avoidance of doubt, such beneficial ownership shall include the beneficial ownership of any persons acting as a “group”, within the meaning of Rule 13d-5, with Citadel Equity Fund Ltd.and its Affiliates. Any conversion notice provided by Lender Citadel Equity Fund Ltd. or its Affiliates shall constitute the converting holder’s confirmation that the conversion of the amount of the Securities sought in the conversion notice will not result in Citadel Equity Fund Ltd. and its Affiliates becoming the beneficial owner of more Common Shares than permitted by the Citadel limitation. Any purported delivery of Common Shares upon conversion of Securities shall be void and have no effect to the extent (but only to the extent) that such delivery would result in Citadel Equity Fund Ltd. and its Affiliates becoming the beneficial owner of more than 9.99% the Citadel limitation. If any delivery of Common Shares owed to a holder upon conversion of Securities is not made, in whole or in part, as a result of the then issued Citadel limitation, the Company’s obligation to make such delivery shall not be extinguished and outstanding shares of Common Stock (the “9.99% Ownership Cap”), without the prior written consent of Lender. The Ownership Cap shall be appropriately adjusted for any stock dividend, stock split, reverse stock split or similar transaction.
(b) The Company shall not increase deliver such Common Shares as promptly as practicable after any such converting holder gives notice to the number of shares of Common Stock Company that may be acquired pursuant to Section 10 of the form of warrant attached hereto as Exhibit B (the “Warrant Reset”) until such time when the shares issuable upon exercise of the such Warrants, when aggregated with all other shares acquired through this financing by Lender and the investors in the Concurrent Financing (in the aggregate as a whole) delivery would not result in Citadel Equity Fund Ltd. and its Affiliates being the beneficial ownership by Lender and the investors in the Concurrent Financing (in the aggregate as a whole) owner of more than 19.994.9% of the issued and Common Shares outstanding shares of Common Stock (the “19.99 Ownership Cap”, and together with the 9.99% Ownership Cap, the “Ownership Cap”) on the date hereof giving effect to at such Warrant Reset as if the exercise price resulting from such Warrant Reset had been in effect on the date hereof, unless stockholder approval is obtained by the Company to issue the shares of Common Stock in excess of the Ownership Captime. The Ownership Cap Citadel limitation shall no longer apply following the effective date of any Fundamental Change;
(C) The Trustee shall be appropriately adjusted for any stock dividendentitled to assume that each converting holder has complied with Sections 11.16(A) and 11.16(B) , stock splitas applicable, reverse stock split or similar transaction. The requisite vote for obtaining stockholder approval as contemplated by this Agreement shall be calculated as required by the rules and regulations of the NASDAQ Stock Marketis not subject thereto.
Appears in 1 contract
Ownership Caps. (ai) The Company Notwithstanding anything herein to the contrary, Iterum shall not issue to Lender any Warrants Holder of a Specified Note, and no Holder of a Specified Note may acquire, a number of Ordinary Shares upon exchange of a Note and the Company shall not otherwise deliver any Ordinary Shares pursuant hereto, to the extent that, (1) upon such exchange, the number of Ordinary Shares then beneficially owned by the Holder and its Affiliates and any other than Blocked Warrants pursuant to Section 4.1(b) above) Persons or shares entities whose beneficial ownership of Common Stock under this Agreement until such time when such shares (including shares issuable upon exercise of the Warrants) proposed to Ordinary Shares would be issued, when aggregated with all other shares then owned beneficially (as calculated pursuant to (i) the Holder’s for purposes of Section 13(d) of the Securities Exchange Act (including any shares held by any “group” of 1934 which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to exchange, convert, exercise or purchase similar to the limitation set forth herein) would exceed 19.99% of the total number of Ordinary Shares issued and outstanding or (2) such issuance, when aggregated with any other Ordinary Shares theretofore or simultaneously therewith issued to or otherwise beneficially owned by the Holder and its Affiliates and any other Persons or entities whose beneficial ownership of Ordinary Shares would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (including any shares held by any “group” of which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to exchange, convert, exercise or purchase similar to the limitation set forth herein) would otherwise result in a “change of control” of Iterum within the meaning of Nasdaq Listing Rule 13d-3 promulgated thereunder 5635(b) ((a) and (b), together, the “Individual Ownership Cap”); except that such limitation shall not apply in the event that Iterum obtains all necessary Shareholder Approvals for such exchange. For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Commission, and the percentage held by the Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act.
(ii) Notwithstanding anything herein to the rules contrary, Iterum shall not issue to any Holder of a Specified Note, and regulations no such Holder may acquire, a number of Ordinary Shares upon exchange of a Note and the NASDAQ Stock Market ) Company shall not otherwise deliver any Ordinary Shares pursuant hereto, to the extent that the issuance of such Ordinary Shares would, together with any other issuance of Ordinary Shares by Lender would not result in Iterum to any Holders of Specified Notes upon the beneficial ownership by Lender exchange of more than 9.99all Specified Notes, exceed 19.99% of the then issued and outstanding shares Ordinary Shares immediately prior to the initial issuance of Common Stock the Specified Notes (the “9.99% Aggregate Ownership Cap”), without except that such limitation shall not apply in the prior written consent event that Iterum (a) obtains all necessary Shareholder Approvals for the issuances of Lender. The Ordinary Shares in excess of the Aggregate Ownership Cap or (b) obtains a waiver from the Nasdaq Stock Market LLC of all applicable listing rules requiring such stockholder approval. Until one of the exceptions in clauses (a) or (b) of the proceeding sentence applies and has been satisfied, upon exchange of a Specified Note the Holder thereof shall in no event, subject to the terms of Section 14.01 and Section 14.02, be appropriately adjusted entitled to receive a number of Ordinary Shares (determined in the aggregate for all such exchanges of a Specified Note by such Holder) in excess of (x) 14,868,973 (subject to adjustment in the event of any stock dividend, stock split, reverse stock split combination or other similar transactionrecapitalization) multiplied by (y) the quotient obtained by dividing the principal amount of such Specified Note by the initial aggregate principal of all Specified Notes immediately following their original issuance.
(biii) The Notwithstanding anything herein to the contrary, Iterum shall not issue to any Holder of a Specified Note, and no such Holder may acquire, a number of Ordinary Shares upon exchange of a Note and the Company shall not increase otherwise deliver any Ordinary Shares pursuant hereto, to the number extent that the issuance of shares of Common Stock that may be acquired pursuant to Section 10 of the form of warrant attached hereto as Exhibit B (the “Warrant Reset”) until such time when the shares issuable upon exercise of the such WarrantsOrdinary Shares would, when aggregated with all other shares acquired through this financing by Lender and the investors in the Concurrent Financing (in the aggregate as a whole) would not result in the beneficial ownership by Lender and the investors in the Concurrent Financing (in the aggregate as a whole) of more than 19.99% of the issued and outstanding shares of Common Stock (the “19.99 Ownership Cap”, and together with any other issuance of Ordinary Shares by Iterum to any Holders of Specified Notes upon the 9.99% Ownership Capexchange of all Specified Notes, exceed the “Ownership Cap”) on the date hereof giving effect to such Warrant Reset as if the exercise price resulting from such Warrant Reset had been in effect on the date hereof, unless stockholder approval is obtained by the Company to issue the shares of Common Stock in excess of the Ownership Cap. The Ownership Cap shall be appropriately adjusted for any stock dividend, stock split, reverse stock split or similar transaction. The requisite vote for obtaining stockholder approval as contemplated by this Agreement shall be calculated as required by the rules and regulations of the NASDAQ Stock Market.Available Shares
Appears in 1 contract
Samples: Indenture
Ownership Caps. Notwithstanding anything to the contrary in this Indenture:
(aA) The Company shall not issue no holder will be entitled to Lender any Warrants receive Common Shares upon conversion of Securities to the extent (other than Blocked Warrants pursuant but only to Section 4.1(bthe extent) above) or shares that such receipt would causesuchconvertingholdertobecome,directlyorindirectly,a‘‘beneficialowner’’ (within the meaning of Common Stock under this Agreement until such time when such shares (including shares issuable upon exercise of the Warrants) proposed to be issued, when aggregated with all other shares then owned beneficially (as calculated pursuant to (i) Section 13(d) of the Securities Exchange Act of 1934 and Rule 13d-3 promulgated thereunder and (ii) the rules and regulations promulgated thereunder) of more than 19.9% of the NASDAQ Stock Market Common Shares outstanding at such time (the “limitation”) for the avoidance of doubt, such beneficial ownership shall includethebeneficialownershipofanypersonsactingasa“group”,withinthemeaning of Rule 13d-5, with such converting holder. Any conversion notice provided by Lender such convertingholdershallconstitutetheconvertingholder’sconfirmationthatthe conversion of the amount of the Securities sought in the conversion notice will not result in the converting holder becoming the beneficial owner of more Common Shares than permitted by the limitation. Any purported delivery of Common Shares upon conversion of Securities shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting holder becoming the beneficial owner of more than the limitation. If any delivery of Common Shares owed to a holder upon conversion of Securities is not made, in whole or in part, as a result of the limitation, the Company’sobligation to make such delivery shall not be extinguished and the Company shall deliver such Common Shares as promptly as practicable after any such converting xxxxxx gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 19.9% of Common Shares outstanding at such time. The limitation shall no longer apply following the effective date of any Fundamental Change;
(B) Citadel Equity Fund Ltd. and its Affiliates will not be entitled to receive Common Shares upon conversion of Securities to the extent (but only to the extent) that such receipt would cause Citadel Equity Fund Ltd. and its Affiliates to become,directlyorindirectly,a‘‘beneficialowner’’(withinthemeaningofSection 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than4.9%oftheCommonSharesoutstandingatsuchtime(the“Citadellimitation”);for the avoidance of doubt, such beneficial ownership shall include the beneficial ownership ofanypersonsactingasa“group”,withinthemeaningofRule13d-5, with Citadel Equity Fund Ltd.and its Affiliates. Any conversion notice provided by Lender Citadel Equity Fund Ltd. or its Affiliates shall constitutetheconvertingholder’sconfirmationthatthe conversion of the amount of the Securities sought in the conversion notice will not result in Citadel Equity Fund Ltd. and its Affiliates becoming the beneficial owner of more Common Shares than permitted by the Citadel limitation. Any purported delivery of 90 Doc#: US1:11364518v24 Common Shares upon conversion of Securities shall be void and have no effect to the extent (but only to the extent) that such delivery would result in Citadel Equity Fund Ltd. and its Affiliates becoming the beneficial owner of more than 9.99% of the then issued and outstanding shares Citadel limitation. If any delivery of Common Stock (Shares owed to a holder upon conversion of Securities is not made,inwholeorinpart,asaresultoftheCitadellimitation,theCompany’sobligation to make such delivery shall not be extinguished and the “9.99% Ownership Cap”), without the prior written consent of Lender. The Ownership Cap shall be appropriately adjusted for any stock dividend, stock split, reverse stock split or similar transaction.
(b) The Company shall not increase deliver such Common Shares as promptly as practicable after any such converting holder gives notice to the number of shares of Common Stock Company that may be acquired pursuant to Section 10 of the form of warrant attached hereto as Exhibit B (the “Warrant Reset”) until such time when the shares issuable upon exercise of the such Warrants, when aggregated with all other shares acquired through this financing by Lender and the investors in the Concurrent Financing (in the aggregate as a whole) delivery would not result in Citadel Equity Fund Ltd. and its Affiliates being the beneficial ownership by Lender and the investors in the Concurrent Financing (in the aggregate as a whole) owner of more than 19.994.9% of the issued and Common Shares outstanding shares of Common Stock (the “19.99 Ownership Cap”, and together with the 9.99% Ownership Cap, the “Ownership Cap”) on the date hereof giving effect to at such Warrant Reset as if the exercise price resulting from such Warrant Reset had been in effect on the date hereof, unless stockholder approval is obtained by the Company to issue the shares of Common Stock in excess of the Ownership Captime. The Ownership Cap Citadel limitation shall no longer apply following the effective date of any Fundamental Change;
(C) The Trustee shall be appropriately adjusted for any stock dividendentitled to assume that each converting holder has complied with Sections 11.16(A) and 11.16(B), stock splitas applicable, reverse stock split or similar transaction. The requisite vote for obtaining stockholder approval as contemplated by this Agreement shall be calculated as required by the rules and regulations of the NASDAQ Stock Marketis not subject thereto.
Appears in 1 contract
Samples: Indenture
Ownership Caps. (ai) The Company Notwithstanding anything herein to the contrary, Iterum shall not issue to Lender any Warrants Holder of a Specified Note, and no Holder of a Specified Note may acquire, a number of Ordinary Shares upon exchange of a Note and the Company shall not otherwise deliver any Ordinary Shares pursuant hereto, to the extent that, (1) upon such exchange, the number of Ordinary Shares then beneficially owned by the Holder and its Affiliates and any other than Blocked Warrants pursuant to Section 4.1(b) above) Persons or shares entities whose beneficial ownership of Common Stock under this Agreement until such time when such shares (including shares issuable upon exercise of the Warrants) proposed to Ordinary Shares would be issued, when aggregated with all other shares then owned beneficially (as calculated pursuant to (i) the Holder’s for purposes of Section 13(d) of the Securities Exchange Act (including any shares held by any “group” of 1934 which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to exchange, convert, exercise or purchase similar to the limitation set forth herein) would exceed 19.99% of the total number of Ordinary Shares issued and outstanding or (2) such issuance, when aggregated with any other Ordinary Shares theretofore or simultaneously therewith issued to or otherwise beneficially owned by the Holder and its Affiliates and any other Persons or entities whose beneficial ownership of Ordinary Shares would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (including any shares held by any “group” of which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to exchange, convert, exercise or purchase similar to the limitation set forth herein) would otherwise result in a “change of control” of Iterum within the meaning of Nasdaq Listing Rule 13d-3 promulgated thereunder 5635(b) ((a) and (b), together, the “Individual Ownership Cap”); except that such limitation shall not apply in the event that Iterum obtains all necessary Shareholder Approvals for such exchange. For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Commission, and the percentage held by the Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act.
(ii) Notwithstanding anything herein to the rules contrary, Iterum shall not issue to any Holder of a Specified Note, and regulations no such Holder may acquire, a number of Ordinary Shares upon exchange of a Note and the NASDAQ Stock Market ) Company shall not otherwise deliver any Ordinary Shares pursuant hereto, to the extent that the issuance of such Ordinary Shares would, together with any other issuance of Ordinary Shares by Lender would not result in Iterum to any Holders of Specified Notes upon the beneficial ownership by Lender exchange of more than 9.99all Specified Notes, exceed 19.99% of the then issued and outstanding shares Ordinary Shares immediately prior to the initial issuance of Common Stock the Specified Notes (the “9.99% Aggregate Ownership Cap”), without except that such limitation shall not apply in the prior written consent event that Iterum (a) obtains all necessary Shareholder Approvals for the issuances of Lender. The Ordinary Shares in excess of the Aggregate Ownership Cap or (b) obtains a waiver from the Nasdaq Stock Market LLC of all applicable listing rules requiring such stockholder approval. Until one of the exceptions in clauses (a) or (b) of the proceeding sentence applies and has been satisfied, upon exchange of a Specified Note the Holder thereof shall in no event, subject to the terms of Section 14.01 and Section 14.02, be appropriately adjusted entitled to receive a number of Ordinary Shares (determined in the aggregate for all such exchanges of a Specified Note by such Holder) in excess of (x) 14,868,973 (subject to adjustment in the event of any stock dividend, stock split, reverse stock split combination or other similar transactionrecapitalization) multiplied by (y) the quotient obtained by dividing the principal amount of such Specified Note by the initial aggregate principal of all Specified Notes immediately following their original issuance.
(biii) The Notwithstanding anything herein to the contrary, Iterum shall not issue to any Holder of a Specified Note, and no such Holder may acquire, a number of Ordinary Shares upon exchange of a Note and the Company shall not increase otherwise deliver any Ordinary Shares pursuant hereto, to the extent that the issuance of such Ordinary Shares would, together with any other issuance of Ordinary Shares by Iterum to any Holders of Specified Notes upon the exchange of all Specified Notes, exceed the Available Shares (the “Available Shares Ownership Cap”), except that such limitation shall not apply in the event that Iterum obtains the Authorized Shares Approval. Until the exception in the proceeding sentence applies and has been satisfied, upon exchange of a Specified Note the Holder thereof shall in no event, subject to the terms of Section 14.01 and Section 14.02, be entitled to receive a number of Ordinary Shares (determined in the aggregate for all such exchanges of a Specified Note by such Holder) in excess of (x) the Available Shares multiplied by (y) the quotient obtained by dividing the principal amount of such Specified Note by the initial aggregate principal of all Specified Notes immediately following their original issuance.
(iv) Notwithstanding anything herein to the contrary, if the Company shall have chosen Physical Settlement or Combination Settlement pursuant to Section 14.02(a) and the exchange of a Note would otherwise result in its Holder exceeding the Individual Ownership Cap, the Aggregate Ownership Cap or the Available Shares Ownership Cap, such that the number of shares issuable upon exchange of Common Stock that may be acquired pursuant to such Note is limited by Section 10 14.01(c)(i), Section 14.01(c)(ii) or Section 14.01(c)(iii), the applicable portion of the form Note that is not exchanged as result of warrant attached hereto such limitations shall remain outstanding in accordance with the terms of this Indenture and the obligation of Iterum to exchange such Note and issue the shares that would have resulted in the Holder exceeding the Individual Ownership Cap, the Aggregate Ownership Cap or the Available Shares Ownership Cap shall not be extinguished, and Iterum and the Trustee shall as Exhibit B (promptly as practicable exchange such Notes and deliver to the “Warrant Reset”) until Holder such number of shares that would have resulted in the Holder exceeding the Individual Ownership Cap, the Aggregate Ownership Cap or the Available Shares Ownership Cap following such time when as the issuance of such shares issuable upon exercise would not exceed the Individual Ownership Cap, the Aggregate Ownership Cap or the Available Shares Ownership Cap; provided, however, that in the case of an issuance of shares that would result in the Holder exceeding the Individual Ownership Cap, such WarrantsHolder shall provide written notice to the Company, when aggregated with all other shares acquired through this financing by Lender Iterum and the investors in the Concurrent Financing (in the aggregate as a whole) Trustee that such delivery would not result in the beneficial ownership by Lender Holder exceeding the Individual Ownership Cap and shall provide the Company, Iterum and the investors Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee in connection therewith. In no event shall the Company nor the Guarantors have any obligation to pay to the Holder in cash the value of the Ordinary Shares that would otherwise be issuable upon an exchange in the Concurrent Financing (in the aggregate as a whole) of more than 19.99% absence of the issued and outstanding shares of Common Stock (the “19.99 Ownership Cap”, and together with the 9.99% Individual Ownership Cap, the “Aggregate Ownership Cap or the Available Shares Ownership Cap”; provided that any Note not so exchanged as a result of the application of the foregoing shall remain outstanding in accordance with the terms of this Indenture.
(v) on Notwithstanding anything herein to the date hereof giving effect contrary, in the event a Holder of a Physical Note (a) notifies the Company, Iterum and the Trustee after delivery of a Mandatory Exchange Notice including the Company’s election of Physical Settlement or Combination Settlement and prior to completion of the Mandatory Exchange that such Holder would be obligated to make a mandatory offer for the entire issued share capital of Iterum pursuant to Rule 9 of the Irish Takeover Rules as a result of the issuance of Ordinary Shares to the Holder upon a Mandatory Exchange and (b) provides the Company, Iterum and the Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee in connection therewith, Iterum shall issue to such Warrant Reset Holder the maximum number of Ordinary Shares that may be issued to such Holder without obligating such Holder to make such a mandatory offer and shall not exchange Ordinary Shares for the remaining portion of such Note; provided, however, that the obligation of Iterum to issue any such additional Ordinary Shares shall not be extinguished, and Iterum shall make such delivery as if promptly as practicable after any such Holder gives notice to the exercise price resulting from Company, Iterum and the Trustee that such Warrant Reset had been delivery would not result in effect on the date hereofHolder being obligated to make a mandatory offer for the entire issued share capital of Iterum pursuant to Rule 9 of the Irish Takeover Rules.
(vi) Notwithstanding anything herein to the contrary, unless stockholder approval is obtained in the event a Beneficial Holder (a) notifies the Company, Iterum and the Trustee after delivery of a Mandatory Exchange Notice including the Company’s election of Physical Settlement or Combination Settlement and prior to completion of the Mandatory Exchange that such Beneficial Holder would be obligated to make a mandatory offer for the entire issued share capital of Iterum pursuant to Rule 9 of the Irish Takeover Rules as a result of the issuance of Ordinary Shares to the Beneficial Holder upon a Mandatory Exchange, (b) provides the Company, Iterum and the Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee in connection therewith and (c) requests a Physical Note in lieu of a beneficial interest in a Global Note, the Company shall promptly cause a Physical Note to issue be issued to the shares Beneficial Holder in accordance with Section 2.05(c), and shall treat such Beneficial Holder as though such Beneficial Holder were a Holder who had delivered a notice pursuant to Section 14.01(c)(v).
(vii) For the avoidance of Common Stock in excess doubt, any Notes or portion thereof not exchanged for Ordinary Shares as result of the Ownership Cap. The Ownership Cap provisions of this Section 14.01(c) shall continue to be held by the Holders thereof, and none of the rights, obligations and other terms under the Notes, this Indenture or the Guarantee with respect to such Notes shall be appropriately adjusted for any stock dividenddeemed amended or otherwise modified in connection with such exchange.
(viii) Any Ordinary Shares issued upon exchange of a Specified Note shall not be voted in connection with, stock splitor counted in support of, reverse stock split or similar transaction. The requisite vote for obtaining stockholder approval as contemplated by this Agreement shall be calculated as required by the rules and regulations of the NASDAQ Stock MarketShareholder Approval.
Appears in 1 contract
Samples: Indenture (Iterum Therapeutics PLC)
Ownership Caps. (ai) The Company Notwithstanding anything herein to the contrary, Iterum shall not issue to Lender any Warrants Holder of a Specified Note, and no Holder of a Specified Note may acquire, a number of Ordinary Shares upon exchange of a Note and the Company shall not otherwise deliver any Ordinary Shares pursuant hereto, to the extent that, (1) upon such exchange, the number of Ordinary Shares then beneficially owned by the Holder and its Affiliates and any other than Blocked Warrants pursuant to Section 4.1(b) above) Persons or shares entities whose beneficial ownership of Common Stock under this Agreement until such time when such shares (including shares issuable upon exercise of the Warrants) proposed to Ordinary Shares would be issued, when aggregated with all other shares then owned beneficially (as calculated pursuant to (i) the Holder’s for purposes of Section 13(d) of the Securities Exchange Act (including any shares held by any “group” of 1934 which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to exchange, convert, exercise or purchase similar to the limitation set forth herein) would exceed 19.99% of the total number of Ordinary Shares issued and outstanding or (2) such issuance, when aggregated with any other Ordinary Shares theretofore or simultaneously therewith issued to or otherwise beneficially owned by the Holder and its Affiliates and any other Persons or entities whose beneficial ownership of Ordinary Shares would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (including any shares held by any “group” of which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to exchange, convert, exercise or purchase similar to the limitation set forth herein) would otherwise result in a “change of control” of Iterum within the meaning of Nasdaq Listing Rule 13d-3 promulgated thereunder 5635(b) ((a) and (b), together, the “Individual Ownership Cap”); except that such limitation shall not apply in the event that Iterum obtains all necessary Shareholder Approvals for such exchange. For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Commission, and the percentage held by the Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act.
(ii) Notwithstanding anything herein to the rules contrary, Iterum shall not issue to any Holder of a Specified Note, and regulations no such Holder may acquire, a number of Ordinary Shares upon exchange of a Note and the NASDAQ Stock Market ) Company shall not otherwise deliver any Ordinary Shares pursuant hereto, to the extent that the issuance of such Ordinary Shares would, together with any other issuance of Ordinary Shares by Lender would not result in Iterum to any Holders of Specified Notes upon the beneficial ownership by Lender exchange of more than 9.99all Specified Notes, exceed 19.99% of the then issued and outstanding shares Ordinary Shares immediately prior to the initial issuance of Common Stock the Specified Notes (the “9.99% Aggregate Ownership Cap”), without except that such limitation shall not apply in the prior written consent event that Iterum (a) obtains all necessary Shareholder Approvals for the issuances of Lender. The Ordinary Shares in excess of the Aggregate Ownership Cap or (b) obtains a waiver from the Nasdaq Stock Market LLC of all applicable listing rules requiring such stockholder approval. Until one of the exceptions in clauses (a) or (b) of the proceeding sentence applies and has been satisfied, upon exchange of a Specified Note the Holder thereof shall in no event, subject to the terms of Section 14.01 and Section 14.02, be appropriately adjusted entitled to receive a number of Ordinary Shares (determined in the aggregate for all such exchanges of a Specified Note by such Holder) in excess of (x) [•]3 (subject to adjustment in the event of any stock dividend, stock split, reverse stock split combination or other similar transactionrecapitalization) multiplied by (y) the quotient obtained by dividing the principal amount of such Specified Note by the initial aggregate principal of all Specified Notes immediately following their original issuance. 3 Insert outstanding share amount as of First Issue Date.
(biii) The Notwithstanding anything herein to the contrary, Iterum shall not issue to any Holder of a Specified Note, and no such Holder may acquire, a number of Ordinary Shares upon exchange of a Note and the Company shall not increase otherwise deliver any Ordinary Shares pursuant hereto, to the extent that the issuance of such Ordinary Shares would, together with any other issuance of Ordinary Shares by Iterum to any Holders of Specified Notes upon the exchange of all Specified Notes, exceed the Available Shares (the “Available Shares Ownership Cap”), except that such limitation shall not apply in the event that Iterum obtains the Authorized Shares Approval. Until the exception in the proceeding sentence applies and has been satisfied, upon exchange of a Specified Note the Holder thereof shall in no event, subject to the terms of Section 14.01 and Section 14.02, be entitled to receive a number of Ordinary Shares (determined in the aggregate for all such exchanges of a Specified Note by such Holder) in excess of (x) the Available Shares multiplied by (y) the quotient obtained by dividing the principal amount of such Specified Note by the initial aggregate principal of all Specified Notes immediately following their original issuance.
(iv) Notwithstanding anything herein to the contrary, if the Company shall have chosen Physical Settlement or Combination Settlement pursuant to Section 14.02(a) and the exchange of a Note would otherwise result in its Holder exceeding the Individual Ownership Cap, the Aggregate Ownership Cap or the Available Shares Ownership Cap, such that the number of shares issuable upon exchange of Common Stock that may be acquired pursuant to such Note is limited by Section 10 14.01(c)(i), Section 14.01(c)(ii) or Section 14.01(c)(iii), the applicable portion of the form Note that is not exchanged as result of warrant attached hereto such limitations shall remain outstanding in accordance with the terms of this Indenture and the obligation of Iterum to exchange such Note and issue the shares that would have resulted in the Holder exceeding the Individual Ownership Cap, the Aggregate Ownership Cap or the Available Shares Ownership Cap shall not be extinguished, and Iterum and the Trustee shall as Exhibit B (promptly as practicable exchange such Notes and deliver to the “Warrant Reset”) until Holder such number of shares that would have resulted in the Holder exceeding the Individual Ownership Cap, the Aggregate Ownership Cap or the Available Shares Ownership Cap following such time when as the issuance of such shares issuable upon exercise would not exceed the Individual Ownership Cap, the Aggregate Ownership Cap or the Available Shares Ownership Cap; provided, however, that in the case of an issuance of shares that would result in the Holder exceeding the Individual Ownership Cap, such WarrantsHolder shall provide written notice to the Company, when aggregated with all other shares acquired through this financing by Lender Iterum and the investors in the Concurrent Financing (in the aggregate as a whole) Trustee that such delivery would not result in the beneficial ownership by Lender Holder exceeding the Individual Ownership Cap and shall provide the Company, Iterum and the investors Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee in connection therewith. In no event shall the Company nor the Guarantors have any obligation to pay to the Holder in cash the value of the Ordinary Shares that would otherwise be issuable upon an exchange in the Concurrent Financing (in the aggregate as a whole) of more than 19.99% absence of the issued and outstanding shares of Common Stock (the “19.99 Ownership Cap”, and together with the 9.99% Individual Ownership Cap, the “Aggregate Ownership Cap or the Available Shares Ownership Cap”; provided that any Note not so exchanged as a result of the application of the foregoing shall remain outstanding in accordance with the terms of this Indenture.
(v) on Notwithstanding anything herein to the date hereof giving effect contrary, in the event a Holder of a Physical Note (a) notifies the Company, Iterum and the Trustee after delivery of a Mandatory Exchange Notice including the Company’s election of Physical Settlement or Combination Settlement and prior to completion of the Mandatory Exchange that such Holder would be obligated to make a mandatory offer for the entire issued share capital of Iterum pursuant to Rule 9 of the Irish Takeover Rules as a result of the issuance of Ordinary Shares to the Holder upon a Mandatory Exchange and (b) provides the Company, Iterum and the Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee in connection therewith, Iterum shall issue to such Warrant Reset Holder the maximum number of Ordinary Shares that may be issued to such Holder without obligating such Holder to make such a mandatory offer and shall not exchange Ordinary Shares for the remaining portion of such Note; provided, however, that the obligation of Iterum to issue any such additional Ordinary Shares shall not be extinguished, and Iterum shall make such delivery as if promptly as practicable after any such Holder gives notice to the exercise price resulting from Company, Iterum and the Trustee that such Warrant Reset had been delivery would not result in effect on the date hereofHolder being obligated to make a mandatory offer for the entire issued share capital of Iterum pursuant to Rule 9 of the Irish Takeover Rules.
(vi) Notwithstanding anything herein to the contrary, unless stockholder approval is obtained in the event a Beneficial Holder (a) notifies the Company, Iterum and the Trustee after delivery of a Mandatory Exchange Notice including the Company’s election of Physical Settlement or Combination Settlement and prior to completion of the Mandatory Exchange that such Beneficial Holder would be obligated to make a mandatory offer for the entire issued share capital of Iterum pursuant to Rule 9 of the Irish Takeover Rules as a result of the issuance of Ordinary Shares to the Beneficial Holder upon a Mandatory Exchange, (b) provides the Company, Iterum and the Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee in connection therewith and (c) requests a Physical Note in lieu of a beneficial interest in a Global Note, the Company shall promptly cause a Physical Note to issue be issued to the shares Beneficial Holder in accordance with Section 2.05(c), and shall treat such Beneficial Holder as though such Beneficial Holder were a Holder who had delivered a notice pursuant to Section 14.01(c)(v).
(vii) For the avoidance of Common Stock in excess doubt, any Notes or portion thereof not exchanged for Ordinary Shares as result of the Ownership Cap. The Ownership Cap provisions of this Section 14.01(c) shall continue to be held by the Holders thereof, and none of the rights, obligations and other terms under the Notes, this Indenture or the Guarantee with respect to such Notes shall be appropriately adjusted for any stock dividenddeemed amended or otherwise modified in connection with such exchange.
(viii) Any Ordinary Shares issued upon exchange of a Specified Note shall not be voted in connection with, stock splitor counted in support of, reverse stock split or similar transaction. The requisite vote for obtaining stockholder approval as contemplated by this Agreement shall be calculated as required by the rules and regulations of the NASDAQ Stock MarketShareholder Approval.
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Samples: Indenture (Iterum Therapeutics PLC)
