Tender Offer (a) The Borrower will use its best efforts to consummate the Tender Offer with respect to all of the Holding Company Convertible Notes tendered thereunder no later than November 5, 2009 (or such later date to which the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions).
(b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Section.
Tender As soon as practicable upon completion of the Developer decision process and satisfaction of Security posting requirements described in Section 25.8 of Attachment S, acceptance by the Developer of its Attachment S cost allocation, the ISO shall tender to the Developer and Connecting Transmission Owner a draft LGIA together with draft appendices completed to the extent practicable. The draft LGIA shall be in the form of the ISO’s Commission-approved LGIA, which is in Appendix 4 to this Attachment X. Within six (6) months after the date the ISO tenders the draft LGIA, the Developer must have satisfied the applicable regulatory milestone described in Section 25.6.2.3.1
Documents Comprising the Tender 10.1 The Tender shall comprise the following:
a) Form of Tender prepared in accordance with ITT11;
b) Price Schedules: completed in accordance with ITT 11 and ITT 13;
c) Tender Security or Tender-Securing Declaration, in accordance with ITT 18.1;
d) Alternative Tender: if permissible, in accordance with ITT12;
e) Authorization: written confirmation authorizing the signatory of the Tender to commit the Tenderer, in accordance with ITT19.3;
f) Qualifications: documentary evidence in accordance with ITT 16.2 establishing the Tenderer qualifications to perform the Contract if its Tender is accepted;
g) Tenderer Eligibility: documentary evidence in accordance with ITT16.1 establishing the Tenderer eligibility to tender;
h) Eligibility of Goods and Related Services: documentary evidence in accordance with ITT 15, establishing the eligibility of the Goods and Related Services to be supplied by the Tenderer;
i) Conformity: documentary evidence in accordance with ITT15.2 that the Goods and Related Services conform to the tender document; and
j) any other document required in the TDS.
10.2 In addition to the requirements under ITT 10.1, Tenders submitted by a JV shall include a copy of the Joint Venture Agreement entered into by all members. Alternatively, a letter of intent to execute a Joint Venture Agreement in the event of a successful Tender shall be signed by all members and submitted with the Tender, together with a copy of the proposed Agreement.
10.3 The Tenderer shall furnish in the Form of Tender information on commissions gratuities, and fees, if any, paid or to be paid to agents or any other party relating to this Tender.
The Tender Offer (a) CIG shall (i) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Tender Offer on the Commencement Date and (ii) cause the Tender Offer to remain open until the twentieth Business Day after such commencement of the Tender Offer or, as set forth in this Section 3.01(a), such other later date as CIG, the NBCU Entities and the Company may agree (the “Tender Offer Initial Expiration Date” and together with any extension permitted hereunder, the “Tender Offer Expiration Date”). CIG shall be obligated to accept for payment and pay for shares of Class A Common Stock validly tendered pursuant to the Tender Offer, subject only to the satisfaction or waiver of each of the conditions set forth in Annex A (the “Tender Offer Conditions”). CIG shall have the right to amend or make changes to the terms of the Tender Offer; provided, however, that, without the prior written consent of the Company, the NBCU Entities and the Xxxxxx Stockholders, CIG shall not do any of the following: (A) decrease the Offer Price or change the form of consideration to be paid in the Tender Offer, (B) impose any conditions to the Tender Offer other than the Tender Offer Conditions or (C) otherwise amend the Tender Offer in a manner that would materially and adversely affect the holders of shares of Class A Common Stock. Notwithstanding anything in this Agreement to the contrary, CIG shall have the right to extend the Tender Offer beyond the Tender Offer Initial Expiration Date for: (1) any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Tender Offer or (2) any period required by applicable Law, and upon the Company’s request, CIG shall extend the Tender Offer beyond the Tender Offer Initial Expiration Date for one period of up to 30 days for the purpose of satisfying (x) the requirements under any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Tender Offer or (y) the waiting period requirements applicable to the Tender Offer under the HSR Act. CIG may extend the Tender Offer beyond the date on which shares of Class A Common Stock are first accepted for payment as a “subsequent offering period” (as such term is defined in Rule 14d-1(g)(8) under the Exchange Act in accordance with Rule 14d-11 of the Exchange Act (a “Subsequent Period”); provided, that upon the request of the Company, CIG shall extend the Tender Offer for one such Subsequent Period; provided, further, that no Subsequent Period shall be less than three Business Days nor more than 20 Business Days and that the total number of Subsequent Periods shall not exceed one. To the extent CIG amends or makes changes to the terms and conditions of the Tender Offer pursuant to this Section 3.01(a), the Company and the NBCU Entities shall cooperate with CIG in making any filings or amendments required by the DGCL, the Exchange Act, the Securities Act or any other applicable Law, or as otherwise may be necessary to effect such amendment or change.
(b) As promptly as reasonably practicable on the date the Tender Offer is commenced, (A) CIG shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments thereto, the “Tender Offer Schedule TO”) and (B) the Company shall file a Solicitation/Recommendation Statement on Schedule 14D-9 (the “Schedule 14D-9”) with respect to the Tender Offer, each of which will comply in all material respects with the provisions of all applicable federal and state securities laws, and will contain (including as an exhibit) or incorporate by reference an offer to purchase relating to the Tender Offer and forms of the related letter of transmittal (which documents, together with the Tender Offer Schedule TO and any supplements or amendments thereto, are referred to collectively as the “Tender Offer Documents”). The related letter of transmittal shall provide that, among other matters, in order for shares of Class A Common Stock to be validly tendered, each holder of shares of Class A Common Stock who tenders in the Tender Offer shall represent and warrant to CIG that (x) such holder has full power and authority to tender, sell, assign and transfer shares of Class A Common Stock in the Tender Offer, (y) such holder is not prohibited or restricted from tendering shares of Class A Common Stock in the Tender Offer by the terms of such shares or any Contract and (z) when such shares are accepted for payment by CIG, CIG shall acquire good, marketable and unencumbered title thereto, free and clear of all Liens.
(c) The Schedule 14D-9 shall contain the recommendation of the Board described in Section 3.02(a) which recommendation shall not be withdrawn or amended without the prior written consent of CIG and NBCU; provided, however, that the Company’s recommendation may be withdrawn or modified by the Board without the prior written consent of CIG and NBCU to the extent that the Board determines in the good faith exercise of its reasonable business judgment, after receiving the advice of outside counsel, that such recommendation would no longer be consistent with its fiduciary duties to the Company’s stockholders under applicable Law. On the date filed with the SEC and on the date first disseminated to the Company’s stockholders, the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to written information supplied by CIG or the NBCU Entities specifically for inclusion in the Schedule 14D-9. On the date filed with the SEC and on the date first disseminated to the Company’s stockholders, the Tender Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by CIG with respect to written information supplied by the Company or the NBCU Entities specifically for inclusion in the Tender Offer Documents, and no representation shall be made by the Company with respect to written information supplied by CIG or the NBCU Entities specifically for inclusion in the Tender Offer Documents. CIG and the Company shall take all steps necessary to cause the Tender Offer Documents to be filed with the SEC and to be disseminated to the Company’s stockholders, in each case as and to the extent required by applicable federal securities laws. Each of CIG, the NBCU Entities and the Company shall promptly correct or supplement any information provided by it for use in the Tender Offer Documents if and to the extent that it shall have become false and misleading in any material respect, and CIG and the Company shall take all steps necessary to cause the Tender Offer Documents as so corrected to be filed with the SEC and to be disseminated to the Company’s stockholders, in each case as and to the extent required by applicable federal securities laws. The Company, the NBCU Entities and their respective counsel shall be given a reasonable opportunity to review the initial Tender Offer Documents before they are filed with the SEC. CIG, the NBCU Entities and their respective counsel shall be given a reasonable opportunity to review the initial Schedule 14D-9 before it is filed with the SEC. In addition, CIG, on the one hand, and the Company, on the other hand, agree to provide the other, the NBCU Entities and their respective counsel with any comments or other communications that either party or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 or the Tender Offer Documents promptly after the receipt of such comments or other communications. The Company, the NBCU Entities and their respective counsel shall be given a reasonable opportunity to review and comment on any response of CIG to comments or other communications from the SEC or any amended or revised Tender Offer Documents before it is filed with the SEC. CIG, the NBCU Entities and their respective counsel shall be given a reasonable opportunity to review any response of the Company to comments or other communications from the SEC or any amended or revised Schedule 14D-9 before it is filed with the SEC.
(d) Subject to the terms of this Agreement, promptly after the expiration of the “initial offering period” (as such term is defined in Rule 14d-1(g)(4) under the Exchange Act) and, if applicable, promptly in accordance with Rule 14d-11 under the Exchange Act, during the Subsequent Period, CIG shall accept for payment and pay for, in accordance with the terms of the Tender Offer, all of the shares of Class A Common Stock validly tendered pursuant to the Tender Offer and not validly withdrawn.
(e) If the payment of the Offer Price is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing shares of Class A Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Offer Price to a Person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of CIG that such taxes either have been paid or are not applicable.
Tender of Shares (a) Stockholder hereby agrees to validly tender or cause to be tendered to Purchaser pursuant to and in accordance with the terms of the Offer, not later than the fifth business day after commencement of the Offer pursuant to Article 1 of the Purchase and Sale Agreement and Rule 14d-2 under the Exchange Act, the number of outstanding shares of Company Common Stock Beneficially Owned by it as set forth on the signature page hereto (the “Existing Shares”), and not to withdraw the Existing Shares, or cause the Existing Shares to be withdrawn, from the Offer at any time (except following the termination or expiration of the Offer without Purchaser purchasing all shares of Company Common Stock tendered pursuant to the Offer in accordance with its terms). If Stockholder acquires Beneficial Ownership of any outstanding shares of Company Common Stock after the date hereof and prior to the termination of this Agreement, whether upon the exercise of options, warrants or rights, the conversion or exchange of convertible or exchangeable securities, or by means of purchase, dividend, distribution or otherwise (together with the Existing Shares, the “Shares”), Stockholder shall validly tender such Shares or cause such Shares to be tendered to Purchaser pursuant to and in accordance with the Offer, not later than the fifth business day after commencement of the Offer pursuant to Article 1 of the Purchase and Sale Agreement and Rule 14d-2 of the Exchange Act or, if acquired later than such time, on or before the fifth business day after such acquisition, but in any event prior to the expiration date of the Offer, and not withdraw such Shares, or cause such Shares to be withdrawn, from the Offer at any time (except in accordance with the provisions of this Agreement). Stockholder shall not withdraw any Shares so tendered unless this Agreement is terminated or otherwise terminates in accordance with its terms under Section 7 hereof or the Offer is terminated or has expired without Purchaser purchasing all shares of Company Common Stock validly tendered in the Offer and not withdrawn. Notwithstanding the foregoing, a Stockholder may decline to tender, or may withdraw, any and all of Stockholder’s Shares if, without the consent of Stockholder, Purchaser amends the Offer to (i) reduce the Offer Price for the Shares in the Offer, (ii) reduce the number of shares of Company Common Stock subject to the Offer, (iii) change the form of consideration payable in the Offer, (iv) change the “Minimum Condition,” which requires the tender of 35% of the fully diluted shares of Company Common Stock, or (v) amend or modify any term or condition of the Offer in a manner adverse to Stockholder (other than insignificant changes or amendments or other than to waive any condition other than the Minimum Condition which the parties agree cannot be waived or reduced) (clauses (i) through (v) collectively are hereinafter referred to as a “Material Amendment”). A Stockholder shall give Purchaser at least two (2) business days’ prior notice of any withdrawal of its Shares pursuant to the immediately preceding proviso.
(b) Stockholder hereby acknowledges and agrees that the obligation of Purchaser to accept for payment and pay for any Shares in the Offer, including the Shares Beneficially Owned by Stockholder, shall be subject to the terms and conditions of the Offer.
(c) Purchaser shall return to Stockholder all materials tendered by Stockholder to Purchaser promptly after the termination or expiration of the Offer without Purchaser purchasing such Shares of Company Common Stock tendered pursuant to the Offer in accordance with its terms.
(d) Stockholder hereby agrees to permit Purchaser to publish and disclose in the Offer documents (including all related documents and schedules filed with the SEC), its identity and ownership of Company Common Stock and the nature of its obligations, commitments, arrangements and understandings under this Agreement.
Tender Offers In case (i) a tender or exchange offer made by the Company or any subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of Purchased Shares) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (ii) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender or exchange offer, by the Company or any subsidiary of the Company for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section or this paragraph (6) has been made and (iii) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section or this paragraph (6) has been made, exceeds 15% of the product of the Current Market Price per share of the Common Stock as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Settlement Rate shall be adjusted so that the same shall equal the rate determined by dividing the Settlement Rate immediately prior to the close of business on the date of the Expiration Time by a fraction (A) the numerator of which shall be equal to (x) the product of (I) the Current Market Price per share of the Common Stock on the date of the Expiration Time and (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time less (y) the amount of cash plus the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the transactions described in clauses (i), (ii) and (iii) above (assuming in the case of clause (i) the acceptance, up to any maximum specified in the terms of the tender or exchange offer, of Purchased Shares), and (B) the denominator of which shall be equal to the product of (x) the Current Market Price per share of the Common Stock as of the Expiration Time and (y) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares").
Settlement Upon Conversion The type and amount of consideration (the “Conversion Consideration”) due in respect of each $1,000 principal amount of a Note (including, for the avoidance of doubt, any PIK Interest paid with respect thereto) to be converted will be a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion.
(i) If the number of shares of Common Stock deliverable pursuant to Section 2.8(c) upon conversion of any Note is not a whole number, then such number will be rounded to the nearest whole number.
(ii) If a Purchaser converts more than one Note on a single Conversion Date, then the Conversion Consideration due in respect of such conversion will be computed based on the total principal amount of Notes converted on such Conversion Date by or with respect to such Purchaser.
(iii) The Issuer will pay or deliver, as applicable, the Conversion Consideration due upon the conversion of any Note to the Purchaser on or before the second Business Day immediately after the Conversion Date for such conversion.
(iv) At all times when any Notes are outstanding, the Issuer will reserve, out of its authorized but unissued and unreserved shares of Common Stock, a number of shares of Common Stock sufficient to permit the conversion of all then-outstanding Notes, assuming the Conversion Rate is increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section 2.9.
(v) Each Conversion Share delivered upon conversion of any Note will be duly and validly issued, fully paid, non-assessable, free from preemptive rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of the Purchaser holding such Note or the Person to whom such Conversion Share will be delivered). If the Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Issuer will cause each Conversion Share, when delivered upon conversion of any Note, to be admitted for listing on such exchange or quotation on such system.
(vi) Upon conversion, a Purchaser shall not receive any separate cash payment for accrued and unpaid interest, if any. The Issuer’s delivery of the Conversion Consideration shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any (other than for the avoidance of doubt, PIK Interest), to, and including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited.
Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion In addition to any other rights available to the Holder, if the Company fails for any reason to deliver to the Holder such Conversion Shares by the Share Delivery Date pursuant to Section 4(c)(ii), and if after such Share Delivery Date the Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Conversion Shares which the Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Company shall (A) pay in cash to the Holder (in addition to any other remedies available to or elected by the Holder) the amount, if any, by which (x) the Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of the Holder, either reissue (if surrendered) this Debenture in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued if the Company had timely complied with its delivery requirements under Section 4(c)(ii). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Debenture with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Conversion Shares upon conversion of this Debenture as required pursuant to the terms hereof.
Tender Opening 24.1 Except as in the cases specified in ITT 23, the Procuring Entity shall, at the Tender opening, publicly open and read out all Tenders received by the deadline at the date, time and place specified in the TDS in the presence of Tenderers' designated representatives who choose to attend, including to attend any specific electronic tender opening procedures if electronic tendering is permitted in accordance with ITT 21.1, shall be as specified in the TDS.
24.2 First, envelopes marked “WITHDRAWAL” shall be opened and read out and the envelope with the corresponding Tender shall not be opened, but returned to the Tenderer. If the withdrawal envelope does not contain a copy of the “power of attorney” confirming the signature as a person duly authorized to sign on behalf of the Tenderer, the corresponding Tender will be opened. No Tender withdrawal shall be permitted unless the corresponding withdrawal notice contains a valid authorization to request the withdrawal and is read out at Tender opening.
24.3 Next, envelopes marked “SUBSTITUTION” shall be opened and read out and exchanged with the corresponding Tender being substituted, and the substituted Tender shall not be opened, but returned to the Tenderer. No Tender substitution shall be permitted unless the corresponding substitution notice contains a valid authorization to request the substitution and is read out at Tender opening.
24.4 Next, envelopes marked “MODIFICATION” shall be opened and read out with the corresponding Tender. No Tender modification shall be permitted unless the corresponding modification notice contains a valid authorization to request the modification and is read out at Tender opening.
24.5 Next, all remaining envelopes shall be opened one at a time, reading out: the name of the Tenderer and whether there is a modification; the total Tender Prices, per lot (contract) if applicable, including any discounts and alternative Tenders; the presence or absence of a Tender Security, if required; and any other details as the Procuring Entity may consider appropriate.
Company’s Failure to Timely Convert If within two (2) Trading Days after the Company's receipt of the facsimile or email copy of a Conversion Notice the Company shall fail to issue and deliver to Holder via “DWAC/FAST” electronic transfer the number of shares of Common Stock to which the Holder is entitled upon such holder's conversion of any Conversion Amount (a "Conversion Failure"), the Original Principal Amount of the Note shall increase by $2,000 per day until the Company issues and delivers a certificate to the Holder or credit the Holder's balance account with DTC for the number of shares of Common Stock to which the Holder is entitled upon such holder's conversion of any Conversion Amount (under Holder’s and Company’s expectation that any damages will tack back to the Issuance Date). Company will not be subject to any penalties once its transfer agent processes the shares to the DWAC system. If the Company fails to deliver shares in accordance with the timeframe stated in this Section, resulting in a Conversion Failure, the Holder, at any time prior to selling all of those shares, may rescind any portion, in whole or in part, of that particular conversion attributable to the unsold shares and have the rescinded conversion amount returned to the Outstanding Balance with the rescinded conversion shares returned to the Company (under Xxxxxx’s and Company’s expectations that any returned conversion amounts will tack back to the original date of the Note).