Redemption Upon a Change of Control. (a) Upon the occurrence of a Change of Control, each Holder shall have the right to require the Company to redeem, in cash from legally available funds and provided that the Company is permitted to do so under the terms of any then-outstanding Indebtedness, Senior Stock or Parity Stock, all or any of its shares of Redeemable Convertible Preferred Stock, on the date that is 45 days after the Company Notice Date (as defined below) (the “CHANGE OF CONTROL PURCHASE DATE”) at a cash price per share equal to the sum of (A) (i) 110% of the then-effective Conversion Price multiplied by the number of shares of Common Stock into which one share of Redeemable Convertible Preferred Stock is then convertible under Section 7(a) above, if the average of the Volume Weighted Average Price for 30 consecutive Trading Days immediately prior to the Company Notice Date is equal to or less than the then-effective Conversion Price, or (ii) 100% of the then-effective Conversion Price multiplied by the number of shares of Common Stock into which one share of Redeemable Convertible Preferred Stock is then convertible under Section 7(a), if the average of the Volume Weighted Average Price for 30 consecutive Trading Days immediately prior to the Company Notice Date is greater than the then-effective Conversion Price, plus (B) an amount equal to all accrued and unpaid dividends on one share of Redeemable Convertible Preferred Stock, whether or not declared prior to the Change of Control Purchase Date, for the then-current dividend period until the Change of Control Purchase Date and all prior dividend periods (other than previously declared dividends on the Redeemable Convertible Preferred Stock payable to Holders of record as of a prior date) (such per-share sum, the “CHANGE OF CONTROL REDEMPTION PRICE”). (b) In the event of a Change of Control, the Company must give notice of such Change of Control within 10 Trading Days after the effective date of the Change of Control (such date, being the “COMPANY NOTICE DATE”), by mail, to each Holder, at such Holder’s address as the same appears on the stock register of the Company or its Transfer Agent. Each such notice shall state (i) that a Change of Control has occurred and a description of the resulting redemption right; (ii) the Change of Control Redemption Price and the Change of Control Purchase Date; and (iii) instructions each Holder must follow to exercise its redemption right. For the avoidance of doubt, the Company’s failure to provide notice to any Holder pursuant to this Section 9(b) shall not in any way limit, impair or otherwise adversely effect the Holder’s right to request the Company to redeem its shares of Redeemable Convertible Preferred Stock under this Certificate of Designations. (c) In order to exercise the redemption right upon a Change of Control, a Holder must deliver to the Company prior to the Change of Control Purchase Date, a notice in compliance with the instructions provided in the Company’s notice given pursuant to Section 9(b) above (the “CHANGE OF CONTROL NOTICE”). A Holder may withdraw a Change of Control Notice by delivering a written notice of withdrawal to the Transfer Agent prior to the close of business on the Business Day prior to the Change of Control Purchase Date, stating (i) the number of shares of Redeemable Convertible Preferred Stock that are being withdrawn; (ii) the certificate numbers of the withdrawn shares of Redeemable Convertible Preferred Stock (if any such shares are evidenced by certificates); and (iii) the number of shares of Redeemable Convertible Preferred Stock, if any, which remain subject to the Holder’s Change of Control Notice. (d) If funds to pay the aggregate Change of Control Redemption Price are lawfully are available on the Change of Control Purchase Date, then whether or not shares are surrendered for payment of the Change of Control Redemption Price, shares of Redeemable Convertible Preferred Stock tendered for redemption and not validly withdrawn pursuant to this Section 9 shall no longer be outstanding, dividends will cease to accrue on such shares and the Holders thereof shall cease to have any rights with respect to such shares of Redeemable Convertible Preferred Stock on and after the Change of Control Purchase Date except for the right to receive the Change of Control Redemption Price, without interest, upon the surrender of such shares. The Company shall take all such actions as are necessary to maximize the funds that are legally available for the payment of dividends on, and the redemption of, shares of Redeemable Convertible Preferred Stock, including, without limitation, the revaluation of the Company’s assets to their actual values. (e) The funds necessary for the payment of the Change of Control Redemption Price shall be deposited with the Transfer Agent in trust at least one Business Day prior to the Change of Control Purchase Date, for the pro rata benefit of the Holders of record as they appear on the stock register of the Company or its Transfer Agent, so as to be, and continue to be, available therefor. The deposit of monies in trust with the Transfer Agent up to the amount necessary for the payment of the aggregate Change of Control Redemption Price shall be irrevocable, except that the Company shall be entitled to receive from the Transfer Agent the interest earned on monies so deposited in trust, and the Holders of the shares of Redeemable Convertible Preferred Stock converted shall have no claim to such interest or other earnings, and any balance of monies so deposited by the Company and unclaimed by the Holders entitled thereto at the expiration of two years from the Change of Control Purchase Date shall be repaid, together with any interest or other earnings thereon, to the Company, and after any such repayment, the Holders of the shares of Redeemable Convertible Preferred Stock entitled to the funds so repaid to the Company shall look only to the Company for such payment, without interest. On the Change of Control Purchase Date and subject to the receipt by the Transfer Agent of a completed and duly executed Change of Control Notice and compliance with the instructions set forth in the notice provided by the Company pursuant to Section 9(b), including surrender of any certificates representing share(s) of Redeemable Convertible Preferred Stock to be redeemed, the Company shall instruct the Transfer Agent to pay the Change of Control Purchase Price to each Holder who has duly exercised its redemption rights pursuant to this Section 9 for each share of Redeemable Convertible Preferred Stock of such Holder subject to redemption under this Section 9.
Appears in 2 contracts
Samples: Investment Agreement (Transmeridian Exploration Inc), Investment Agreement (Transmeridian Exploration Inc)
Redemption Upon a Change of Control. (a) Upon the occurrence of a Change of Control, each Holder shall have the right to require the Company to redeem, in cash from legally available funds and provided that the Company is permitted to do so under the terms of any then-outstanding Indebtedness, Senior Stock or Parity Stock, all or any of its shares of Redeemable Convertible Preferred Stock, on the date that is 45 days after the Company Notice Date (as defined below) (the “CHANGE OF CONTROL PURCHASE DATE”) at a cash price per share equal to the sum of (A) (i) 110% of the then-effective Conversion Price multiplied by the number of shares of Common Stock into which one share of Redeemable Convertible Preferred Stock is then convertible under Section 7(a) above, if the average of the Volume Weighted Average Price for 30 consecutive Trading Days immediately prior to the Company Notice Date is equal to or less than the then-effective Conversion Price, or (ii) 100% of the then-effective Conversion Price multiplied by the number of shares of Common Stock into which one share of Redeemable Convertible Preferred Stock is then convertible under Section 7(a), if the average of the Volume Weighted Average Price for 30 consecutive Trading Days immediately prior to the Company Notice Date is greater than the then-effective Conversion Price, plus (B) an amount equal to all accrued and unpaid dividends on one share of Redeemable Convertible Preferred Stock, whether or not declared prior to the Change of Control Purchase Date, for the then-current dividend period until the Change of Control Purchase Date and all prior dividend periods (other than previously declared dividends on the Redeemable Convertible Preferred Stock payable to Holders of record as of a prior date) (such per-share sum, the “CHANGE OF CONTROL REDEMPTION PRICE”).
(b) In the event of there occurs a Change of Control, the Company must give notice Corporation shall, subject to legal availability of such funds therefor, offer to redeem all of the outstanding shares of the Series C Preferred Stock held by a holder for an amount per share of Series C Preferred Stock (the "Change of Control within 10 Trading Days after Redemption Price") equal to the effective greater of: (i) the sum of (1) the Series C Liquidation Preference, and (2) an amount per share of the Series C Preferred Stock (the "Change of Control Lookback Return") equal to an eighteen percent (18%) per annum return on investment on the Stated Amount, compounded quarterly from the Issuance Date until the date of the Change of Control reduced by the actual return (such dateassuming quarterly compounding) on the Stated Amount over the same period; or (ii) the sum of (1) the Stated Amount, being and (2) the “COMPANY NOTICE DATE”)Change of Control Lookback Return. In the event
(b) Each holder of Series C Preferred Stock shall also be permitted, by mailuntil the fifth (5th) Business Day following a Change of Control, to each Holder, at convert the shares of Series C Preferred Stock held by such Holder’s address as the same appears on the stock register holder into shares of the Company or its Transfer Agent. Each such notice shall state (i) Common Stock in accordance with Section 8 below; provided that any shares of Common Stock issuable upon conversion of any Series C Preferred Stock converted pursuant to this sentence after a Change of Control has occurred shall be entitled to receive the same amount of cash, securities and other property in connection with such Change of Control as the Common Stock outstanding prior to the Change of Control. In the event that any holder does not elect to convert or redeem such holder's shares of Series C Preferred Stock pursuant to the foregoing sentence, such holder shall retain any rights it has to convert or redeem its shares of Series C Preferred Stock in connection with any subsequent Change of Control.
(c) Within five (5) Business Days following a description Change of Control event requiring the Corporation to offer to redeem shares of Series C Preferred Stock pursuant to Section 7(a) herein, the Corporation shall send notice of such offer of redemption by first class mail, postage prepaid, to each holder of record of shares of Series C Preferred Stock, at such holder's address as it appears on the transfer books of the resulting redemption rightCorporation; provided, however, the failure to give such notice or any defect therein or in the mailing thereof shall not affect the validity of the offer except as to the holder to whom the Corporation has failed to give notice or except as to the holder to whom notice was defective. Such notice shall state: (iii) the Change of Control Redemption Price and the Change of Control Purchase Date; and (iii) instructions each Holder must follow to exercise its redemption right. For the avoidance of doubt, the Company’s failure to provide notice to any Holder pursuant to this Section 9(b) shall not in any way limit, impair or otherwise adversely effect the Holder’s right to request the Company to redeem its shares of Redeemable Convertible Preferred Stock under this Certificate of Designations.
(c) In order to exercise the redemption right upon a Change of Control, a Holder must deliver to the Company prior to the Change of Control Purchase Date, a notice in compliance with the instructions provided in the Company’s notice given pursuant to Section 9(b) above (the “CHANGE OF CONTROL NOTICE”). A Holder may withdraw a Change of Control Notice by delivering a written notice of withdrawal to the Transfer Agent prior to the close of business on the Business Day prior to the Change of Control Purchase Date, stating (i) the number of shares of Redeemable Convertible Preferred Stock that are being withdrawnPrice; (ii) the certificate numbers of the withdrawn shares of Redeemable Convertible Preferred Stock (if any place or places where certificates for such shares are evidenced by certificates); and (iii) the number of shares of Redeemable Convertible Preferred Stock, if any, which remain subject to the Holder’s Change of Control Notice.
(d) If funds to pay the aggregate Change of Control Redemption Price are lawfully are available on the Change of Control Purchase Date, then whether or not shares are be surrendered for payment of the Change of Control Redemption Price, including any procedures applicable to redemptions to be accomplished through book-entry transfers; and (iii) that dividends on the shares to be redeemed shall cease to accumulate upon the date fixed for redemption by the Corporation (the "Change of Control Redemption Date") unless such shares are not actually redeemed on such date. The Corporation shall publish the fact that it is offering to redeem shares of Redeemable Convertible Series C Preferred Stock tendered for redemption and not validly withdrawn through a nationally prominent newswire service on or before the date of mailing any notice of right of redemption. In the event a record holder of shares of Series C Preferred Stock shall elect to require the Corporation to redeem shares of Series C Preferred Stock pursuant to this Section 9 7, such holder shall no longer deliver within twenty (20) Business Days of the mailing to it of the Corporation's notice described in this Section 7(c), a written notice to the Corporation so stating, specifying the number of shares to be outstandingredeemed pursuant to this Section 7. The Corporation shall, dividends will cease to accrue in accordance with the terms hereof, redeem the number of shares so specified on such shares and the Holders thereof shall cease to have any rights with respect to such shares of Redeemable Convertible Preferred Stock on and after the Change of Control Purchase Date except for the right to receive the Change of Control Redemption PriceDate. Failure of the Corporation to give any notice required by this Section 7(c), without interestor the formal insufficiency of any such notice, upon shall not prejudice the surrender rights of such shares. The Company shall take all such actions as are necessary to maximize the funds that are legally available for the payment any holders of dividends on, and the redemption of, shares of Redeemable Convertible Preferred Stock, including, without limitation, the revaluation of the Company’s assets to their actual values.
(e) The funds necessary for the payment of the Change of Control Redemption Price shall be deposited with the Transfer Agent in trust at least one Business Day prior to the Change of Control Purchase Date, for the pro rata benefit of the Holders of record as they appear on the stock register of the Company or its Transfer Agent, so as to be, and continue to be, available therefor. The deposit of monies in trust with the Transfer Agent up to the amount necessary for the payment of the aggregate Change of Control Redemption Price shall be irrevocable, except that the Company shall be entitled to receive from the Transfer Agent the interest earned on monies so deposited in trust, and the Holders of the shares of Redeemable Convertible Preferred Stock converted shall have no claim to such interest or other earnings, and any balance of monies so deposited by the Company and unclaimed by the Holders entitled thereto at the expiration of two years from the Change of Control Purchase Date shall be repaid, together with any interest or other earnings thereon, to the Company, and after any such repayment, the Holders of the shares of Redeemable Convertible Preferred Stock entitled to the funds so repaid to the Company shall look only to the Company for such payment, without interest. On the Change of Control Purchase Date and subject to the receipt by the Transfer Agent of a completed and duly executed Change of Control Notice and compliance with the instructions set forth in the notice provided by the Company pursuant to Section 9(b), including surrender of any certificates representing share(s) of Redeemable Convertible Series C Preferred Stock to be redeemedcause the Corporation to redeem shares held by them. Notwithstanding the foregoing, the Company shall instruct Board of Directors of the Transfer Agent to pay the Change of Control Purchase Price to each Holder who has duly exercised its redemption rights Corporation may modify any offer pursuant to this Section 9 for each share of Redeemable Convertible Preferred Stock of such Holder subject 7(c) to redemption under this Section 9the extent necessary to comply with the Exchange Act and the rules and regulations thereunder.
Appears in 1 contract
Samples: Securities Purchase Agreement (Prison Realty Trust Inc)
Redemption Upon a Change of Control. (a) Upon In the occurrence of event there occurs a Change of Control, each Holder shall have the right Corporation shall, subject to require legal availability of funds therefor, offer to redeem all of the Company to redeem, in cash from legally available funds and provided that the Company is permitted to do so under the terms of any then-outstanding Indebtedness, Senior Stock or Parity Stock, all or any of its shares of Redeemable Convertible the Series B Preferred Stock, on the date that is 45 days after the Company Notice Date (as defined below) Stock held by a holder for an amount per share of Series B Preferred Stock (the “CHANGE OF CONTROL PURCHASE DATE”"Change of Control Redemption Price") at a cash price per share equal to the greater of: (i) the sum of (A1) the Series B Liquidation Preference, and (i2) 110% an amount per share of the then-effective Conversion Price multiplied Series B Preferred Stock (the "Change of Control Lookback Return") equal to an eighteen percent (18%) per annum return on investment on the Stated Amount, compounded quarterly from the Issuance Date until the date of the Change of Control reduced by the number of shares of Common Stock into which one share of Redeemable Convertible Preferred Stock is then convertible under Section 7(aactual return (assuming quarterly compounding) above, if on the average of Stated Amount over the Volume Weighted Average Price for 30 consecutive Trading Days immediately prior to the Company Notice Date is equal to or less than the then-effective Conversion Price, same period; or (ii) 100% the sum of (1) the then-effective Conversion Price multiplied by the number of shares of Common Stock into which one share of Redeemable Convertible Preferred Stock is then convertible under Section 7(a)Stated Amount, if the average of the Volume Weighted Average Price for 30 consecutive Trading Days immediately prior to the Company Notice Date is greater than the then-effective Conversion Price, plus and (B2) an amount equal to all accrued and unpaid dividends on one share of Redeemable Convertible Preferred Stock, whether or not declared prior to the Change of Control Purchase Date, for the then-current dividend period until the Change of Control Purchase Date and all prior dividend periods (other than previously declared dividends on the Redeemable Convertible Preferred Stock payable to Holders of record as of a prior date) (such per-share sum, the “CHANGE OF CONTROL REDEMPTION PRICE”).
(b) Lookback Return. In the event of a Change of Control, each holder of Series B Preferred Stock shall have the Company must give notice right (but not the obligation) to require the Corporation to redeem any or all of the Series B Preferred Stock held by such Change of Control within 10 Trading Days after the effective date of holder for an amount equal to the Change of Control Redemption Price. Any payments to holders of Series B Preferred Stock exercising the right to redeem shares of Series B Preferred Stock pursuant to this Section 6(a) shall be in preference to holders of Junior Stock.
(such dateb) Each holder of Series B Preferred Stock shall also be permitted, being until the “COMPANY NOTICE DATE”), by mailfifth (5th) Business Day following a Change of Control, to each Holder, at convert the shares of Series B Preferred Stock held by such Holder’s address as the same appears on the stock register holder into shares of the Company or its Transfer Agent. Each such notice shall state (i) Common Stock in accordance with Section 8 below; provided that any shares of Common Stock issuable upon conversion of any Series B Preferred Stock converted pursuant to this sentence after a Change of Control has occurred shall be entitled to receive the same amount of cash, securities and other property in connection with such Change of Control as the Common Stock outstanding prior to the Change of Control. In the event that any holder does not elect to convert or redeem such holder's shares of Series B Preferred Stock pursuant to the foregoing sentence, such holder shall retain any rights it has to convert or redeem its shares of Series B Preferred Stock in connection with any subsequent Change of Control.
(c) Within five (5) Business Days following a description Change of Control event requiring the Corporation to offer to redeem shares of Series B Preferred Stock pursuant to Section 7(a) herein, the Corporation shall send notice of such offer of redemption by first class mail, postage prepaid, to each holder of record of shares of Series B Preferred Stock, at such holder's address as it appears on the transfer books of the resulting redemption rightCorporation; provided, however, the failure to give such notice or any defect therein or in the mailing thereof shall not affect the validity of the offer except as to the holder to whom the Corporation has failed to give notice or except as to the holder to whom notice was defective. Such notice shall state: (iii) the Change of Control Redemption Price and the Change of Control Purchase Date; and (iii) instructions each Holder must follow to exercise its redemption right. For the avoidance of doubt, the Company’s failure to provide notice to any Holder pursuant to this Section 9(b) shall not in any way limit, impair or otherwise adversely effect the Holder’s right to request the Company to redeem its shares of Redeemable Convertible Preferred Stock under this Certificate of Designations.
(c) In order to exercise the redemption right upon a Change of Control, a Holder must deliver to the Company prior to the Change of Control Purchase Date, a notice in compliance with the instructions provided in the Company’s notice given pursuant to Section 9(b) above (the “CHANGE OF CONTROL NOTICE”). A Holder may withdraw a Change of Control Notice by delivering a written notice of withdrawal to the Transfer Agent prior to the close of business on the Business Day prior to the Change of Control Purchase Date, stating (i) the number of shares of Redeemable Convertible Preferred Stock that are being withdrawnPrice; (ii) the certificate numbers of the withdrawn shares of Redeemable Convertible Preferred Stock (if any place or places where certificates for such shares are evidenced by certificates); and (iii) the number of shares of Redeemable Convertible Preferred Stock, if any, which remain subject to the Holder’s Change of Control Notice.
(d) If funds to pay the aggregate Change of Control Redemption Price are lawfully are available on the Change of Control Purchase Date, then whether or not shares are be surrendered for payment of the Change of Control Redemption Price, including any procedures applicable to redemptions to be accomplished through 8 100 book-entry transfers; and (iii) that dividends on the shares to be redeemed shall cease to accumulate upon the date fixed for redemption by the Corporation (the "Change of Control Redemption Date") unless such shares are not actually redeemed on such date. The Corporation shall publish the fact that it is offering to redeem shares of Redeemable Convertible Series B Preferred Stock tendered for redemption and not validly withdrawn through a nationally prominent newswire service on or before the date of mailing any notice of right of redemption. In the event a record holder of shares of Series B Preferred Stock shall elect to require the Corporation to redeem shares of Series B Preferred Stock pursuant to this Section 9 7, such holder shall no longer deliver within twenty (20) Business Days of the mailing to it of the Corporation's notice described in this Section 7(c), a written notice to the Corporation so stating, specifying the number of shares to be outstandingredeemed pursuant to this Section 7. The Corporation shall, dividends will cease to accrue in accordance with the terms hereof, redeem the number of shares so specified on such shares and the Holders thereof shall cease to have any rights with respect to such shares of Redeemable Convertible Preferred Stock on and after the Change of Control Purchase Date except for the right to receive the Change of Control Redemption PriceDate. Failure of the Corporation to give any notice required by this Section 7(c), without interestor the formal insufficiency of any such notice, upon shall not prejudice the surrender rights of such shares. The Company shall take all such actions as are necessary to maximize the funds that are legally available for the payment any holders of dividends on, and the redemption of, shares of Redeemable Convertible Preferred Stock, including, without limitation, the revaluation of the Company’s assets to their actual values.
(e) The funds necessary for the payment of the Change of Control Redemption Price shall be deposited with the Transfer Agent in trust at least one Business Day prior to the Change of Control Purchase Date, for the pro rata benefit of the Holders of record as they appear on the stock register of the Company or its Transfer Agent, so as to be, and continue to be, available therefor. The deposit of monies in trust with the Transfer Agent up to the amount necessary for the payment of the aggregate Change of Control Redemption Price shall be irrevocable, except that the Company shall be entitled to receive from the Transfer Agent the interest earned on monies so deposited in trust, and the Holders of the shares of Redeemable Convertible Preferred Stock converted shall have no claim to such interest or other earnings, and any balance of monies so deposited by the Company and unclaimed by the Holders entitled thereto at the expiration of two years from the Change of Control Purchase Date shall be repaid, together with any interest or other earnings thereon, to the Company, and after any such repayment, the Holders of the shares of Redeemable Convertible Preferred Stock entitled to the funds so repaid to the Company shall look only to the Company for such payment, without interest. On the Change of Control Purchase Date and subject to the receipt by the Transfer Agent of a completed and duly executed Change of Control Notice and compliance with the instructions set forth in the notice provided by the Company pursuant to Section 9(b), including surrender of any certificates representing share(s) of Redeemable Convertible Series B Preferred Stock to be redeemedcause the Corporation to redeem shares held by them. Notwithstanding the foregoing, the Company shall instruct Board of Directors of the Transfer Agent to pay the Change of Control Purchase Price to each Holder who has duly exercised its redemption rights Corporation may modify any offer pursuant to this Section 9 for each share of Redeemable Convertible Preferred Stock of such Holder subject 7(c) to redemption under this Section 9the extent necessary to comply with the Exchange Act and the rules and regulations thereunder.
Appears in 1 contract
Samples: Securities Purchase Agreement (Prison Realty Trust Inc)
Redemption Upon a Change of Control. (ai) Upon In the occurrence of event there occurs a Change of Control, the Corporation shall offer to purchase from each Holder shall have the right to require the Company to redeem, in cash from legally available funds and provided that the Company is permitted to do so under the terms holder of any then-outstanding Indebtedness, Senior Stock or Parity Stock, all or any of its shares of Redeemable Convertible Preferred Stock, on the date that is 45 days after the Company Notice Date (as defined below) (the “CHANGE OF CONTROL PURCHASE DATE”) at a cash price per share equal to the sum Stock all of (A) (i) 110% of the then-effective Conversion Price multiplied by the number of shares of Common Stock into which one share of Redeemable Convertible Preferred Stock is then convertible under Section 7(a) above, if the average of the Volume Weighted Average Price for 30 consecutive Trading Days immediately prior to the Company Notice Date is such holder equal to or less than the then-effective Conversion Price, or (ii) 100% of the then-effective Conversion Price multiplied by the number of shares of Common Series A Preferred Stock into which one the Corporation redeems from such holder under Section 4(c) of the Series A Certificate of Designations for an amount in respect of each share of Redeemable Convertible Preferred Stock is then convertible under Section 7(a), if the average of the Volume Weighted Average Price for 30 consecutive Trading Days immediately prior held by such holder equal to the Company Notice Date is greater than the then-effective Conversion Price, plus (B) an amount equal to all accrued and unpaid dividends on one Redemption Amount of such share of Redeemable Convertible Preferred Stock, whether or not declared prior to by delivery of a notice of such offer (a "Change of Control Redemption Offer") within ten Business Days following the Change of Control Purchase Date, for the then-current dividend period until the Change of Control Purchase Date and all prior dividend periods (other than previously declared dividends on the Redeemable Convertible Preferred Stock payable to Holders of record as of a prior date) (such per-share sum, the “CHANGE OF CONTROL REDEMPTION PRICE”).
(b) Control. In the event of a Change of Control, each holder of Convertible Preferred Stock shall have the Company must give notice right (but not the obligation) to require the Corporation to purchase such number of shares of Convertible Preferred Stock equal to the number of shares of Series A Preferred Stock the Corporation redeems from such holder under Section 4(c) of the Series A Certificate of Designations for an amount in respect of each share of Convertible Preferred Stock so purchasable equal to the Redemption Amount of such Change share of Control within 10 Trading Days after Convertible Preferred Stock as follows. If the effective date Redemption Amount of each share under this Section 4(c) is equal to the Participating Redemption Amount rather than the Stated Value of such share, the Corporation shall pay the Redemption Amount by issuing to a holder for each share of Convertible Preferred Stock held by such holder a number of shares of Common Stock equal to the Stated Value divided by the Conversion Price. If the Redemption Amount under this Section 4(c) is equal to the Stated Value rather than Participating Redemption Amount or if such holder has elected to receive cash in respect of such holder's shares of Series A Preferred Stock pursuant to the last proviso of Section 4(c)(i) of the Change Series A Certificate of Control Designations, the Redemption Amount for each share of Convertible Preferred Stock shall be paid by (a) paying to the holder of such date, being share of Convertible Preferred Stock an amount in cash equal to the “COMPANY NOTICE DATE”), Adjusted Value and (b) issuing to the holder of such share of Convertible Preferred Stock a number of shares of Common Stock equal to the quotient obtained by mail, to each Holder, at such Holder’s address as the same appears on the stock register of the Company or its Transfer Agent. Each such notice shall state dividing (i) that a Change of Control has occurred and a description the excess of the resulting redemption right; Stated Value over the Adjusted Value by (ii) the Change Conversion Price. Shares of Control Redemption Price and the Change of Control Purchase Date; and (iii) instructions each Holder must follow to exercise its redemption right. For the avoidance of doubt, the Company’s failure to provide notice to any Holder Convertible Preferred Stock not redeemed pursuant to this Section 9(b4(c)(ii) shall not remain outstanding and be entitled to all of the rights and privileges contained in any way limit, impair or otherwise adversely effect the Holder’s right to request the Company to redeem its shares of Redeemable Convertible Preferred Stock under this Certificate of Designations.
(cii) In order Within ten Business Days following the occurrence of a Change of Control, the Corporation shall give notice by mail to exercise each holder of Convertible Preferred Stock, at such holder's address as it appears on the transfer books of the Corporation, of such event, which notice shall set forth (i) each holder's right to require the Corporation to redeem any or all amount (determined in accordance with Section 4(c)(i)) of shares of Convertible Preferred Stock held by such holder, (ii) the redemption date (which date shall be no more than 30 Business Days following the date of such mailed notice), (iii) that any shares of Convertible Preferred Stock not tendered will continue to be entitled to dividends as provided for in Section 2 hereof and (iv) the procedures to be followed by such holder in exercising its right to cause such redemption. In the event a record holder of shares of Convertible Preferred Stock shall elect to require the Corporation to redeem any or all of such holder's shares of Convertible Preferred Stock pursuant to this Section 4(c), such holder shall deliver within 20 Business Days of the mailing to it of the Corporation's notice described in this Section 4(c)(ii) (a "Change of Control Redemption Request"), a written notice to the Corporation so stating and specifying the number of such holder's shares to be redeemed pursuant to this Section 4(c). The Corporation shall, in accordance with the terms hereof, redeem the number of shares so specified on the date fixed for redemption. Failure of the Corporation to give any notice required by this Section 4(c)(ii), or the formal insufficiency of any such notice, shall not prejudice the rights of any holders of shares of Convertible Preferred Stock to cause the Corporation to redeem all such shares held by them. Notwithstanding the foregoing, the Board of Directors may modify any offer (other than with respect to the price to be paid in accordance with Section 4(c)(i) hereof) pursuant to this Section 4(c) to the extent necessary to comply with the Exchange Act and the rules and regulations thereunder.
(iii) If upon a Change of Control, a Holder must deliver the Corporation does not have sufficient capital and surplus legally available to redeem all of the outstanding shares of the Convertible Preferred Stock that the holders thereof have required the Corporation redeem, the Corporation shall take all measures permitted under the DGCL to increase the amount of its capital and surplus legally available, and the Corporation shall redeem as many shares of the Convertible Preferred Stock as it may legally redeem, ratably from the holders electing redemption thereof in proportion to the Company prior number of shares held by them, and shall thereafter from time to time, as soon as it shall have funds available therefor, redeem as many shares of the Change Convertible Preferred Stock held by such holders as it legally may until it has redeemed all of Control Purchase Date, a notice in compliance with the instructions provided in shares of the Company’s notice given pursuant Convertible Preferred Stock the holders thereof require it to Section 9(b) above (redeem. Shares of the “CHANGE OF CONTROL NOTICE”). A Holder may withdraw Convertible Preferred Stock not redeemed upon receipt of a Change of Control Notice Redemption Request shall remain outstanding and be entitled to all of the rights and privileges contained in this Certificate of Designations until such shares are redeemed by delivering a written notice the Corporation in accordance with this Section 4(c). If, and so long as, any Mandatory Redemption Obligation with respect to shares of withdrawal to Convertible Preferred Stock shall not be fully discharged, the Transfer Agent prior to the close of business on the Business Day prior to the Change of Control Purchase Date, stating Corporation shall not (i) directly or indirectly, redeem, purchase or otherwise acquire any Parity Stock (other than in accordance with the number Series A Certificate of Designations) or discharge any mandatory or optional redemption, sinking fund or other similar obligation in respect of any Parity Stock (other than in accordance with the Series A Certificate of Designations or except in connection with a redemption, sinking fund or other similar obligation to be satisfied pro rata with the Convertible Preferred Stock) or (ii) declare or make any Junior Stock Distribution, or, directly or indirectly, discharge any mandatory or optional redemption, sinking fund or other similar obligation in respect of any Junior Stock.
(iv) Notwithstanding anything to the contrary herein, until the Corporation's 9-3/4% Senior Subordinated Notes due 2009 (the "Notes") have been repurchased or repaid or permission for such redemption has been granted under the Notes, the Corporation shall not effect a redemption pursuant to Section 4(c) hereof; provided, however, that any failure to effect a redemption under this Section 4(c)(iv) shall be treated for all intents and purposes as a failure to redeem under Section 4(c)(iii) and the shares of Redeemable the Convertible Preferred Stock that are being withdrawn; (ii) the certificate numbers not redeemed upon receipt of the withdrawn shares of Redeemable Convertible Preferred Stock (if any such shares are evidenced by certificates); and (iii) the number of shares of Redeemable Convertible Preferred Stock, if any, which remain subject to the Holder’s Change of Control Notice.
(d) If funds to pay the aggregate a Change of Control Redemption Price are lawfully are available on the Change of Control Purchase Date, then whether or not shares are surrendered for payment of the Change of Control Redemption Price, shares of Redeemable Convertible Preferred Stock tendered for redemption Request shall remain outstanding and not validly withdrawn pursuant to this Section 9 shall no longer be outstanding, dividends will cease to accrue on such shares and the Holders thereof shall cease to have any rights with respect to such shares of Redeemable Convertible Preferred Stock on and after the Change of Control Purchase Date except for the right to receive the Change of Control Redemption Price, without interest, upon the surrender of such shares. The Company shall take all such actions as are necessary to maximize the funds that are legally available for the payment of dividends on, and the redemption of, shares of Redeemable Convertible Preferred Stock, including, without limitation, the revaluation of the Company’s assets to their actual values.
(e) The funds necessary for the payment of the Change of Control Redemption Price shall be deposited with the Transfer Agent in trust at least one Business Day prior to the Change of Control Purchase Date, for the pro rata benefit of the Holders of record as they appear on the stock register of the Company or its Transfer Agent, so as to be, and continue to be, available therefor. The deposit of monies in trust with the Transfer Agent up to the amount necessary for the payment of the aggregate Change of Control Redemption Price shall be irrevocable, except that the Company shall be entitled to receive from the Transfer Agent the interest earned on monies so deposited in trust, and the Holders all of the rights and privileges contained in this Certificate of Designations until such shares of Redeemable Convertible Preferred Stock converted shall have no claim to such interest or other earnings, and any balance of monies so deposited are redeemed by the Company and unclaimed by Corporation in accordance with this Section 4(c). Any shares not redeemed due to the Holders entitled thereto at the expiration terms of two years from the Change of Control Purchase Date this Section 4(c)(iv) shall be repaid, together with any interest or other earnings thereon, redeemed as soon as the Corporation is able to the Company, and after any effect a redemption of such repayment, the Holders of the shares of Redeemable Convertible Preferred Stock entitled (ratably in proportion to the funds so repaid to the Company shall look only to the Company for such payment, without interest. On the Change of Control Purchase Date and subject to the receipt by the Transfer Agent of a completed and duly executed Change of Control Notice and compliance with the instructions set forth share ownership in the notice provided by the Company pursuant to Section 9(b), including surrender event of any certificates representing share(spartial redemption) of Redeemable Convertible Preferred Stock to be redeemed, under the Company shall instruct the Transfer Agent to pay the Change of Control Purchase Price to each Holder who has duly exercised its redemption rights pursuant to this Section 9 for each share of Redeemable Convertible Preferred Stock of such Holder subject to redemption under this Section 9Notes.
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Redemption Upon a Change of Control. (ai) Upon In the occurrence of event there occurs a Change of Control, the Corporation shall offer to purchase from each Holder shall have holder all of the right to require the Company to redeem, Convertible Preferred Stock held by such holder for an amount in cash from legally available funds and provided that in respect of each share of Convertible Preferred Stock held by such holder equal to the Company is permitted to do so under the terms Liquidation Preference of any then-outstanding Indebtedness, Senior Stock or Parity Stock, all or any such share of its shares of Redeemable Convertible Preferred Stock, on the date that is 45 days after the Company Notice Date by delivery of a notice of such offer (as defined belowa "Change of Control Redemption Offer") (the “CHANGE OF CONTROL PURCHASE DATE”) at a cash price per share equal to the sum of (A) (i) 110% of the then-effective Conversion Price multiplied by the number of shares of Common Stock into which one share of Redeemable Convertible Preferred Stock is then convertible under Section 7(a) above, if the average of the Volume Weighted Average Price for 30 consecutive Trading within ten Business Days immediately prior to the Company Notice Date is equal to or less than the then-effective Conversion Price, or (ii) 100% of the then-effective Conversion Price multiplied by the number of shares of Common Stock into which one share of Redeemable Convertible Preferred Stock is then convertible under Section 7(a), if the average of the Volume Weighted Average Price for 30 consecutive Trading Days immediately prior to the Company Notice Date is greater than the then-effective Conversion Price, plus (B) an amount equal to all accrued and unpaid dividends on one share of Redeemable Convertible Preferred Stock, whether or not declared prior to following the Change of Control Purchase Date, for the then-current dividend period until the Change of Control Purchase Date and all prior dividend periods (other than previously declared dividends on the Redeemable Convertible Preferred Stock payable to Holders of record as of a prior date) (such per-share sum, the “CHANGE OF CONTROL REDEMPTION PRICE”).
(b) Control. In the event of a Change of Control, each holder of Convertible Preferred Stock shall have the Company must right (but not the obligation) to require the Corporation to purchase any or all of the Convertible Preferred Stock held by such holder for an amount in cash in respect of each share of Convertible Preferred Stock held by such holder equal to the Liquidation Preference of such share of Convertible Preferred Stock. Notwithstanding the foregoing, if the redemption price of each share under this Section 4(c) is equal to the Participating Preference Amount rather than the Adjusted Accrued Value of such share, the Corporation shall be entitled to pay all of such redemption price in Common Stock valued at the Closing Price of the Common Stock on the Business Day immediately preceding the redemption date set forth in the notice given by the Corporation pursuant to Section 4(c)(ii); provided, however, that each holder of shares to be redeemed under this Section 4(c)(i) may, in any event, elect to receive the Adjusted Accrued Value in cash, in lieu of a payment of the Participating Preference Amount in Common Stock, with respect to each share being redeemed hereunder.
(ii) Within ten Business Days following the occurrence of a Change of Control, the Corporation shall give notice of such Change of Control within 10 Trading Days after the effective date of the Change of Control (such date, being the “COMPANY NOTICE DATE”), by mail, mail to each Holderholder of Convertible Preferred Stock, at such Holder’s holder's address as the same it appears on the stock register transfer books of the Company or its Transfer Agent. Each Corporation, of such event, which notice shall state set forth (i) that a Change each holder's right to require the Corporation to redeem any or all shares of Control has occurred and a description of the resulting redemption right; Convertible Preferred Stock held by such holder, (ii) the redemption date (which date shall be no more than 30 Business Days following the date of such mailed notice), (iii) that any shares of Convertible Preferred Stock not tendered will continue to accrue dividends as provided for in Section 2(a) hereof and (iv) the procedures to be followed by such holder in exercising its right to cause such redemption. In the event a record holder of shares of Convertible Preferred Stock shall elect to require the Corporation to redeem any or all of such holder's shares of Convertible Preferred Stock pursuant to this Section 4(c), such holder shall deliver within 20 Business Days of the mailing to it of the Corporation's notice described in this Section 4(c)(ii) (a "Change of Control Redemption Price and the Change of Control Purchase Date; and (iii) instructions each Holder must follow to exercise its redemption right. For the avoidance of doubtRequest"), the Company’s failure to provide a written notice to any Holder the Corporation so stating and specifying the number of such holder's shares to be redeemed pursuant to this Section 9(b) 4(c). The Corporation shall, in accordance with the terms hereof, redeem the number of shares so specified on the date fixed for redemption. Failure of the Corporation to give any notice required by this Section 4(c)(ii), or the formal insufficiency of any such notice, shall not in prejudice the rights of any way limit, impair or otherwise adversely effect the Holder’s right to request the Company to redeem its holders of shares of Redeemable Convertible Preferred Stock under to cause the Corporation to redeem all such shares held by them. Notwithstanding the foregoing, the Board of Directors may modify any offer (other than with respect to the price to be paid in accordance with Section 4(c)(i) hereof) pursuant to this Certificate of DesignationsSection 4(c) to the extent necessary to comply with the Exchange Act and the rules and regulations thereunder.
(ciii) In order to exercise the redemption right If upon a Change of Control, a Holder must deliver the Corporation does not have sufficient capital and surplus legally available to redeem all of the outstanding shares of the Convertible Preferred Stock that the holders thereof have required the Corporation redeem, the Corporation shall take all measures permitted under the DGCL to increase the amount of its capital and surplus legally available, and the Corporation shall redeem as many shares of the Convertible Preferred Stock as it may legally redeem, ratably from the holders electing redemption thereof in proportion to the Company prior number of shares held by them, and shall thereafter from time to time, as soon as it shall have funds available therefor, redeem as many shares of the Change Convertible Preferred Stock held by such holders as it legally may until it has redeemed all of Control Purchase Date, a notice in compliance with the instructions provided in shares of the Company’s notice given pursuant Convertible Preferred Stock the holders thereof require it to Section 9(b) above (redeem. Shares of the “CHANGE OF CONTROL NOTICE”). A Holder may withdraw Convertible Preferred Stock not redeemed upon receipt of a Change of Control Notice by delivering Redemption Request shall accrue dividends at a written notice of withdrawal rate equal to the Transfer Agent prior to the close of business on the Business Day prior to the Change of Control Purchase Date, stating (i) the number of shares of Redeemable Convertible Preferred Stock that are being withdrawn; (ii) the certificate numbers 10% per annum of the withdrawn shares of Redeemable Convertible Preferred Stock (if any such shares are evidenced Accrued Value thereof, accruing and compounding in the manner set forth in Section 2(a) hereof, from the date fixed by certificates); and (iii) the number of shares of Redeemable Convertible Preferred Stock, if any, which remain subject to the Holder’s Change of Control Notice.
(d) If funds to pay the aggregate Corporation for a Change of Control Redemption Price are lawfully are available on the Change of Control Purchase Date, then whether or not until such shares are surrendered for payment of redeemed by the Change of Control Corporation in accordance with this Section 4(c). If, and so long as, any Mandatory Redemption Price, Obligation with respect to shares of Redeemable Convertible Preferred Stock tendered for redemption and shall not validly withdrawn pursuant be fully discharged, the Corporation shall not (i) directly or indirectly, redeem, purchase or otherwise acquire any Parity Stock (other than in accordance with the Series B Certificate of Designations) or discharge any mandatory or optional redemption, sinking fund or other similar obligation in respect of any Parity Stock (other than in accordance with the Series B Certificate of Designations or except in connection with a redemption, sinking fund or other similar obligation to this Section 9 shall no longer be outstanding, dividends will cease to accrue on such shares and satisfied pro rata with the Holders thereof shall cease to have any rights with respect to such shares of Redeemable Convertible Preferred Stock on and after the Change of Control Purchase Date except for the right to receive the Change of Control Redemption Price, without interest, upon the surrender of such shares. The Company shall take all such actions as are necessary to maximize the funds that are legally available for the payment of dividends on, and the redemption of, shares of Redeemable Convertible Preferred Stock) or (ii) declare or make any Junior Stock Distribution, includingor, without limitationdirectly or indirectly, the revaluation discharge any mandatory or optional redemption, sinking fund or other similar obligation in respect of the Company’s assets to their actual valuesany Junior Stock.
(eiv) The funds necessary for the payment of the Change of Control Redemption Price shall be deposited with the Transfer Agent in trust at least one Business Day prior Notwithstanding anything to the Change of Control Purchase Datecontrary herein, until the Corporation's 9-3/4% Senior Subordinated Notes due 2009 (the "Notes") have been repurchased or repaid or permission for such redemption has been granted under the pro rata benefit of the Holders of record as they appear on the stock register of the Company or its Transfer Agent, so as to be, and continue to be, available therefor. The deposit of monies in trust with the Transfer Agent up to the amount necessary for the payment of the aggregate Change of Control Redemption Price shall be irrevocable, except that the Company shall be entitled to receive from the Transfer Agent the interest earned on monies so deposited in trust, and the Holders of the shares of Redeemable Convertible Preferred Stock converted shall have no claim to such interest or other earnings, and any balance of monies so deposited by the Company and unclaimed by the Holders entitled thereto at the expiration of two years from the Change of Control Purchase Date shall be repaid, together with any interest or other earnings thereon, to the Company, and after any such repaymentNotes, the Holders of the shares of Redeemable Convertible Preferred Stock entitled to the funds so repaid to the Company Corporation shall look only to the Company for such payment, without interest. On the Change of Control Purchase Date and subject to the receipt by the Transfer Agent of not effect a completed and duly executed Change of Control Notice and compliance with the instructions set forth in the notice provided by the Company redemption pursuant to Section 9(b)4(c) hereof; provided, including surrender of however, that any certificates representing share(s) of Redeemable Convertible Preferred Stock failure to be redeemed, the Company shall instruct the Transfer Agent to pay the Change of Control Purchase Price to each Holder who has duly exercised its redemption rights pursuant to this Section 9 for each share of Redeemable Convertible Preferred Stock of such Holder subject to effect a redemption under this Section 94(c)(iv) shall be treated for all intents and purposes as a failure to redeem under Section 4(c)(iii) above and, without limiting the generality of the foregoing, the increased dividend accrual rate set forth in Section 4(c)(iii) above shall apply pending redemption. Any shares not redeemed due to the terms of this Section 4(c)(iv) shall be redeemed as soon as the Corporation is able to effect a redemption of such shares (ratably in proportion to share ownership in the event of any partial redemption) under the Notes.
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