Treatment of Company Notes. Prior to the Closing Date, Acquiror and the Company shall mutually consult in good faith with respect to any plans, if any, to (i) commence one or more tender offers, exchange offers or consent solicitations or change of control offers for any of the Company Notes prior to the Closing Date, the settlement of which, in each case, will be contingent on the Closing or (ii) redeem or satisfy and discharge any Company Notes, as of the Effective Time. To the extent reasonably requested by Acquiror, the Company shall provide reasonable and customary assistance, at Acquiror’s sole cost and expense, in connection therewith, including using reasonable best efforts to (x) take any actions reasonably necessary or appropriate to be taken to issue conditional redemption notices or notices of conditional offers to purchase or exchange the Company Notes, or consent solicitations which close at or following the Effective Time, or other documents necessary to commence any tender offers, exchange offer or consent solicitations or change of control offers, as the case may be, for the Company Notes and (y) cause the applicable trustee to proceed with such tender offers, exchange offers or consent solicitations or change of control offers, as the case may be, for the Company Notes, and take any such action as is reasonably necessary to cause the applicable trustee or other applicable agent to send the notices of offers to purchase or redemption, consent solicitation statement or other documents necessary to commence such a transaction, to the holders of the Company Notes on or prior to the Closing Date, as applicable. Acquiror shall draft all documentation related to any tender offer, exchange offer and/or consent solicitation and shall provide advanced review and consultation to the Company and give reasonable and good faith consideration to reflecting any comments raised by the Company and its counsel. Any dealer manager, information agent, depositary or other agent retained in connection with any tender offers, exchange offers or consent solicitations or change of control offers, as the case may be, for the Company Notes will be selected by Acquiror and be reasonably acceptable to the Company and the fees and expenses of such agents will be paid directly by Acquiror. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to give a notice of redemption that is not conditional on Closing.
Treatment of Company Notes. (a) Within the time periods required by the terms of the Company Indenture, the Company shall take all actions required to be performed by it prior to the Effective Time by the terms of the Company Indenture as a result of the execution and delivery of this Agreement, including the giving of any notices that may be required prior to the Effective Time in connection with the convertibility of Company Notes. Notwithstanding anything to the contrary in this Section 6.17, nothing herein shall require the Company to pay any fees, incur or reimburse any costs or expenses (other than attorneys’ fees arising in connection with the fulfillment of the Company’s obligations under this Section 6.17), or make any payment in connection with any Company Note or this Section 6.17 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective Time.
Treatment of Company Notes. (a) (a) At the First Effective Time, pursuant to the terms and conditions of those certain Debt Settlement Agreements to be entered into by the Company and the holders of the Company Notes set forth on Schedule I hereto prior to the Closing (the “Debt Settlement Agreements”) substantially in the form attached hereto as Exhibit E, the principal amount owing
Treatment of Company Notes. Each Company Note outstanding immediately prior to the Effective Time shall be cancelled and, upon the cancellation of such Company Note, shall be converted into the right to receive therefor (i) an amount of cash equal to the product of (A) the Remaining Working Capital Cash Payment, multiplied by (B) a fraction, the numerator of which is the outstanding principal of and accrued interest on such Company Note as of the Closing, and the denominator of which is the aggregate amount of the outstanding principal of and accrued interest on all of the Company Notes as of the Closing; and (ii) a number of shares of Parent Common Stock equal to a fraction, the numerator of which is the remaining amount of the outstanding principal of and accrued interest on such Company Note as of the Closing (after giving effect to the payment described in clause (i) above), and the denominator of which is the Parent Common Stock Per Share Price (rounded to the nearest whole share) ((i) and (ii), collectively, the “Note Consideration”). Each Company Note is hereby amended to give effect to this Section 1.2(f) and the other applicable provisions of this Agreement and, simultaneously with the execution and delivery of this Agreement, each holder of a Company Note is delivering an instrument to the Company acknowledging and agreeing to such amendment (a “Company Note Acknowledgement”).
Treatment of Company Notes. (a) At the First Effective Time, pursuant to the terms and conditions of those certain Debt Settlement Agreements to be entered into by the Company and the holders of the Company Notes set forth on Schedule I hereto prior to the Closing (the “Debt Settlement Agreements”) substantially in the form attached hereto as Exhibit D, the principal amount owing under each of the Company Notes set forth on Schedule I hereto shall be converted into the right to receive a number of shares of Parent Common Stock (the “Note Conversion Parent Common Shares”) equal to the quotient obtained by dividing (a) the aggregate outstanding principal amount of that Company Note divided by (b) seventy-five percent (75%) of the lower of the following: (x) the last closing sale price per share for Parent Common Stock prior to 4:00 p.m. (New York City time) on the last Trading Day prior to the Closing Date, as reported by Bloomberg; or (y) the average of the last closing sale price per share for Parent Common Stock prior to 4:00 p.m. (New York City time) on each of the five (5) consecutive full Trading Days ending on the last Trading Day immediately prior to such Closing Date, provided that such quotient shall be rounded up to the nearest whole number (such Note Conversion Parent Common shares, the “First Merger Note Consideration” and the First Merger Note Consideration together with the First Merger Stock Consideration and the Assumed Options, the “First Merger Consideration” ), and all such Company Notes and the principal amounts owing thereunder shall no longer be outstanding and shall automatically be cancelled and shall cease to exist. The interest owing thereon shall be forgiven in exchange for the issuance of certain royalty rights (the “Royalty Rights”) described in the Debt Settlement Agreements. Thereafter, each Company Note shall represent only the right to receive the First Merger Note Consideration and such royalty rights as specified in the Debt Settlement Agreement pertaining to such Company Note. “
Treatment of Company Notes. Prior to the Effective Time, the Company shall take all corporate actions necessary, including adopting appropriate resolutions and obtaining consents of holders of Company Notes, if required, to provide that, prior to the Effective Time, each Company Note shall either be (i) converted into Company Shares or (ii) repaid and cancelled and following such repayment, shall be of no further force and effect.
Treatment of Company Notes. The Company shall comply in all material respects with its obligations under the terms of the Indenture, including within the time periods required by the Indenture, taking all actions required by it to be taken prior to the Effective Time as a result of the consummation of the Merger. In addition, without limiting the generality of the foregoing, the Company or the Surviving Corporation, as applicable, shall: (a) upon the occurrence of a “Fundamental Change” (as defined in the Indenture) make an offer to purchase the Notes and, if holders of Notes exercise their purchase rights with respect to their Notes, purchase such Notes, in each case pursuant to Article 15 of the Indenture; (b) convert any Notes surrendered for conversion by holders thereof, upon compliance with the provisions of the Indenture, pursuant to the terms of Article 14 of the Indenture; and (c) take all other actions required in accordance with, and subject to, the terms of the Indenture (including the time periods specified 69 therein), including the giving of any notices that may be required in connection with the Merger or in connection with any repurchases or conversions of the Notes occurring as a result of, or in connection with, the transactions contemplated by this Agreement constituting a “Fundamental Change” or a “Make-Whole Fundamental Change” (each, as defined in the Indenture), and delivery of any legal opinions, officers’ certificates or other documents or instruments required in connection with the consummation of the Merger, pursuant to the terms of the Indenture. The Company shall provide Parent, Merger Sub and their Representatives reasonable opportunity to review and comment on any written notice or communication to or with holders of the Notes or with the Trustee under the Indenture prior to the dispatch or making thereof, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub or their Representatives.
