Shift Exchanges In no event shall any overtime be payable as a result of employees voluntarily exchanging shifts.
The Exchange (a) The Company agrees, promptly upon the satisfaction of the conditions set forth in Section 2 below, to repay the Subordinated Notes by delivering to the Note Holders the following (the “Exchange Consideration”):
(i) a number of shares of Preferred Stock having an aggregate liquidation preference equal to $12.8 million (the “Exchange Preferred Shares”); and
(ii) a number of shares of Common Stock having a Fair Market Value (as defined below), rounded to the nearest whole number of shares, equal to (x) the outstanding principal amount of the Subordinated Notes on the date of closing of the transactions contemplated by this Agreement (the “Closing Date”), plus (y) all accrued and unpaid interest on the Subordinated Notes on the Closing Date, minus (z) $12.8 million (the “Exchange Common Shares” and, together with the Exchange Preferred Shares, the “Exchange Shares”).
(b) The Note Holders agree to accept the Exchange Consideration as full repayment of all amounts outstanding on the Subordinated Notes. Upon the payment of the Exchange Consideration, the Note Holders will xxxx the Subordinated Notes “Paid in Full” and surrender the Subordinated Notes to the Company. Furthermore, upon the payment of the Exchange Consideration, any security interest held by the Note Holders to secure the repayment of the Subordinated Notes will automatically be released, and the Note Holders hereby irrevocably designate the Company as their attorney-in-fact for the purpose of executing and filing any UCC-3 termination statements in connection with such release.
(c) Nothing in this Agreement will be deemed to modify or amend the terms of the Subordinated Notes, and, until the Subordinated Notes have been repaid in full in accordance with Section 1(a), the Company will, subject to any applicable subordination provisions, continue to comply with its obligations under the Subordinated Notes in accordance with its terms. Without limiting the generality of the foregoing, subject to any applicable subordination provisions, the Company will continue to pay interest on the Subordinated Notes and will make any mandatory prepayments required to be made under the terms of the Subordinated Notes.
(d) The Exchange Consideration to be delivered to the Note Holders will be allocated between the Note Holders in proportion to the respective outstanding principal amounts of the Subordinated Notes held by such Note Holders. At the Closing, the Company will deliver the Exchange Consideration to the Note Holders, free and clear of any liens or security interests.
(e) For purposes of this Agreement, the “Fair Market Value” of one share of Common Stock is equal to the volume weighted average price per share of the Common Stock on the NASDAQ Capital Market during the last ten trading days immediately preceding the Effective Date.
(f) For the avoidance of doubt, neither of the Note Holders will be entitled to receive any of the Exchange Shares or any beneficial ownership thereof at any time until all of the conditions set forth in Section 2 have been satisfied or waived by the applicable Party.
(g) The Exchange Preferred Shares will have rights and preferences substantially similar to the rights and preferences set forth on Exhibit A attached hereto. The Company may, but is not required to, issue additional shares of preferred stock of the same preferred stock series as the Exchange Preferred Shares in one or more public offerings or private placements. In connection with the first such offering for cash of the same series of preferred stock as the Exchange Preferred Shares to occur after the date hereof, the Company will modify (without being required to obtain the consent of the holders of the Exchange Preferred Shares) the provisions of the Exchange Preferred Shares to be appropriate for that type of offering, and the holders of the Exchange Preferred Shares will be entitled to comparable and proportionate rights, together with the subsequent purchasers of such new shares in such offering. There is no assurance that any additional shares of preferred stock (or any Public Preferred Stock, as defined below) will be issued or that a trading market will develop for such shares. Furthermore, there is no assurance that shares of preferred stock issued by the Company in a different series of preferred stock will have rights and preferences similar to the Exchange Preferred Shares. Depending upon market conditions and other factors at the time that any shares of Public Preferred Stock are issued, the rights, designations and preferences of shares of Public Preferred Stock may differ from the rights, designations and preferences of the Exchange Preferred Shares.
Shift Exchange The Employer and the Union agree that shift exchanges are a useful process to allow employees more flexibility and improved work/life balance. Employees within an institution who have the same job classification will be allowed to exchange full shifts for positions in which they are qualified. The shift exchange process will not be used to circumvent the bid system or the supervisory chain of command. Shift exchanges will be in accordance with the following:
A. Request for shift exchanges will be submitted seven (7) calendar days in advance of the exchange, when practicable.
B. Requests for shift exchanges will be considered on a case-by-case basis. The requested shift exchange is voluntary, and is agreed to in writing by both employees, and approved in writing by the supervisor(s). Requests for shift exchanges will be submitted to the appropriate Appointing Authority or designee for approval.
X. Xxxxx exchanges may be denied. If denied, the employee will be provided the reason(s) in writing.
D. Employees will not submit requests for shift exchanges which would result in overtime. Each employee will be considered to have worked their regular schedule.
E. For shift exchanges that occur on an employee’s designated holiday, the employee who is regularly scheduled to work on that holiday will receive the holiday compensation, regardless of who physically worked on that day.
F. The failure of an employee who has exchanged shifts to work the agreed upon shift without appropriate cause may be a basis for disciplinary action.
Data Exchange Each Party shall furnish to the other Party real-time and forecasted data as required by ERCOT Requirements. The Parties will cooperate with one another in the analysis of disturbances to either the Plant or the TSP’s System by gathering and providing access to any information relating to any disturbance, including information from oscillography, protective relay targets, breaker operations, and sequence of events records.
Stock Exchange Listings Parent shall use all reasonable efforts to list on the NYSE, upon official notice of issuance, the Paired Shares to be issued in connection with the Merger.
Obtaining Stock Exchange Listings The Company will from time to time take all action which may be necessary so that the Warrant Shares, immediately upon their issuance upon the exercise of Warrants, will be listed on the principal securities exchanges and markets within the United States of America, if any, on which other shares of Common Stock are then listed.
Transfers and Exchanges The Warrant Agent shall transfer, from time to time, any outstanding Warrants upon the books to be maintained by the Warrant Agent for that purpose, upon surrender thereof for transfer properly endorsed or accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant shall be issued to the transferee and the surrendered Warrant shall be cancelled by the Warrant Agent. Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request. Warrants may be exchanged at the option of the holder thereof, when surrendered at the office of the Warrant Agent, for another Warrant, or other Warrants of different denominations of like tenor and representing in the aggregate the right to purchase a like number of shares of Common Stock.
Stock Exchange Listing The shares of Common Stock have been approved for listing on the NASDAQ Capital Market (the “Exchange”), and the Company has taken no action designed to, or likely to have the effect of, delisting the shares of Common Stock from the Exchange, nor has the Company received any notification that the Exchange is contemplating terminating such listing except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
Exchanges (a) If at any time the Depositor or any of its Affiliates (in either case, a “Depositor Affiliate”) is the Owner or Holder of any Preferred Securities, such Depositor Affiliate shall have the right to deliver to the Property Trustee all or such portion of its Preferred Securities as it elects and, subject to compliance with Sections 2.2 and 3.5 of the Indenture, receive, in exchange therefor, a Like Amount of Notes. Such election (i) shall be exercisable effective on any Distribution Date by such Depositor Affiliate delivering to the Property Trustee a written notice of such election specifying the Liquidation Amount of Preferred Securities with respect to which such election is being made and the Distribution Date on which such exchange shall occur, which Distribution Date shall be not less than ten (10) Business Days after the date of receipt by the Property Trustee of such election notice and (ii) shall be conditioned upon such Depositor Affiliate having delivered or caused to be delivered to the Property Trustee or its designee the Preferred Securities that are the subject of such election by 10:00 A.M. New York time, on the Distribution Date on which such exchange is to occur. After the exchange, such Preferred Securities will be canceled and will no longer be deemed to be Outstanding and all rights of the Depositor Affiliate with respect to such Preferred Securities will cease.
(b) In the case of an exchange described in Section 4.9(a), the Property Trustee on behalf of the Trust will, on the date of such exchange, exchange Notes having a principal amount equal to a proportional amount of the aggregate Liquidation Amount of the Outstanding Common Securities, based on the ratio of the aggregate Liquidation Amount of the Preferred Securities exchanged pursuant to Section 4.9(a) divided by the aggregate Liquidation Amount of the Preferred Securities Outstanding immediately prior to such exchange, for such proportional amount of Common Securities held by the Depositor (which contemporaneously shall be canceled and no longer be deemed to be Outstanding); provided, that the Depositor delivers or causes to be delivered to the Property Trustee or its designee the required amount of Common Securities to be exchanged by 10:00 A.M. New York time, on the Distribution Date on which such exchange is to occur.
Registered Exchange Offer (a) To the extent not prohibited by any applicable law or applicable interpretations of the Commission’s staff, the Company and the Guarantors shall prepare and, not later than 270 days following the Closing Date, shall use their commercially reasonable efforts to file with the Commission an Exchange Offer Registration Statement with respect to the Registered Exchange Offer. The Company and the Guarantors shall use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Act within 365 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder electing to exchange Securities for New Securities (assuming that such Holder is not an Affiliate of the Company or the Guarantors, acquires the New Securities in the ordinary course of such Holder’s business, has no arrangements with any person to participate in the distribution of the New Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such New Securities from and after their receipt without any limitations or restrictions under the Act. The Company and the Guarantors shall use their commercially reasonable efforts to complete the Registered Exchange Offer by the Target Registration Date.
(c) In connection with the Registered Exchange Offer, the Company and the Guarantors shall:
(i) mail or make available to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement and related documents;
(ii) keep the Registered Exchange Offer open for not less than 20 Business Days after the date notice thereof is mailed or publicly disseminated by press release to the Holders (or longer if required by applicable law);
(iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective under the Act until the end of the Exchange Offer Registration Period (including by supplementing and amending the Exchange Offer Registration Statement as required under the Act) to ensure that it is available for sales of New Securities by Exchanging Dealers, if any, during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Registered Exchange Offer is open;
(vi) include disclosure within the Exchange Offer Registration Statement or, prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Company and Guarantors are conducting the Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling (pub. avail. July 2, 1993); and (B) representing that the Company and Guarantors have not entered into any arrangement or understanding with any person to distribute the New Securities to be received in the Registered Exchange Offer and that the Company and the Guarantors are not aware of any person that will participate in the Registered Exchange Offer with a view to distribute (within the meaning of the Act) the New Securities; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange Offer, the Company and Guarantors shall:
(i) accept for exchange all Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 4(s) all Securities so accepted for exchange; and
(iii) cause the Trustee to promptly authenticate and deliver to each Holder of Securities a principal amount of New Securities equal to the principal amount of the Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Registered Exchange Offer to participate in a distribution of the New Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Act if the resales are of New Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent and warrant to the Company and Guarantors that:
(i) any New Securities received by such Holder will be acquired in the ordinary course of such Holder’s business;
(ii) such Holder has no arrangement or understanding with any person to engage in, and such Holder is not engaged in, and does not intend to engage in, the distribution of the New Securities within the meaning of the Act;
(iii) such Holder is not a Broker-Dealer that will receive New Securities in the Registered Exchange Offer for Securities that such Holder purchased directly from the Company for resale pursuant to Rule 144A under the Act or any other available exemption from registration under the Act; and
(iv) such Holder is not an Affiliate of the Company or the Guarantors.
