Convertible Notes. On the Closing Date, the Company shall (a) deliver or cause to be delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents that may be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Telecommunication Systems Inc /Fa/), Merger Agreement (Comtech Telecommunications Corp /De/)
Convertible Notes. (a) On the Closing Date, Parent, Merger Sub and the Company shall (ashall, as and to the extent required by the Convertible Notes Indenture, execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) required by the Convertible Notes Indenture and deliver or cause any certificates and other documents required by the Convertible Notes Indenture to be delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if by such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents that may be required Persons in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenturesupplemental indenture(s), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Agreement and subject to the immediately preceding sentence, prior to the Effective Time, the Company shall take all actions required under the terms of the Convertible Notes Indenture or the Convertible Notes in connection with the Merger and the other transactions contemplated by this Agreement, which actions shall include, without limitation, the Company (or its Subsidiaries or other Representatives, as applicable) complying with the requirements of the Convertible Notes Indenture in respect of any conversion of the Convertible Notes occurring prior to the Effective Time in accordance with the terms of the Convertible Notes Indenture. For the avoidance of doubt, no other provision set forth in this Agreement shall be deemed to prohibit the Company from complying with the Convertible Notes Indenture in respect of any conversions of the Convertible Notes in accordance with the terms of the Convertible Notes and the Convertible Notes Indenture, and any action taken in furtherance of the foregoing shall be deemed in compliance with the terms of this Agreement. The Company shall, unless otherwise prohibited by the Convertible Notes, the Convertible Notes Indenture, or applicable Law, provide Parent and its counsel as promptly as possible, and to the extent practicable, at least three (3) Business Days prior to issuance or delivery to review and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable pursuant to the Convertible Notes Indenture prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect thereto.
(b) Prior to the Effective Time, the Company shall (i) take all actions reasonably requested by Parent in connection with making elections under, amending, negotiating adjustments, obtaining waivers or unwinding or otherwise settling the Convertible Notes Hedge Transactions, (ii) promptly advise Parent of any notices or other communications with the counterparties to the Convertible Notes Hedge Transactions in respect of any settlement or termination thereof or adjustment thereto (including any adjustments arising out of an Announcement Event (as defined in the Bank Warrant Transactions)), and (iii) cooperate with Parent with respect to its efforts to settle, terminate or amend the Convertible Notes Hedge Transactions and the negotiation of any termination or settlement payment or valuation related thereto or the negotiation of any amendment thereto, as applicable; provided that the Company shall not (x) exercise any right that it may have to terminate, or cause the early settlement, exercise or cancellation of, the Convertible Notes Hedge Transactions (other than any exercise or termination contemplated by the applicable Bond Hedge Transaction upon any conversion of the applicable Convertible Notes prior to the Effective Time (a “Specified Exercise”)) (it being agreed that the Company shall notify Parent in writing as promptly as practicable prior to any such exercise or termination) or (y) agree to amend, modify or supplement the terms relating to, or agree to any amount due upon, the termination or settlement thereof, in each case of clauses (x) and (y), without the prior written consent of Parent; provided further, that nothing in this Section 5.15, nothing herein 6.16(b) shall require the Company or any of its Subsidiaries to (A) pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note Notes Hedge Transactions prior to the Effective Time, (B) enter into or this Section 5.15 effect any settlement, termination, instrument or agreement, or agree to any settlement, termination or any other change or modification to any instrument or agreement, that is effective prior to the Effective Time or (including C) refrain from delivering, or delay the delivery of, any notice required by the terms of the Convertible Notes Hedge Transactions or a notice contemplated by the applicable Bond Hedge Transaction in connection with a Specified Exercise (it being understood that the settlement Company will provide Parent with prior notice of any conversion obligationsuch delivery with an opportunity to comment on the relevant notice), prior to the occurrence of the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Globus Medical Inc), Merger Agreement (Nevro Corp)
Convertible Notes. On Through and including the Closing DateEffective Time, within the time periods required by the Company Indenture, the Company and its Subsidiaries shall take all such actions as may be required in accordance with, and subject to, the terms of the Company Indenture or under applicable Legal Requirements, including the giving of any notices that may be required and any repurchases or conversions of the Company Notes occurring, in each case as a result of, or in connection with, the execution and delivery of this Agreement or the consummation of the Merger or any other transaction contemplated hereby. Through and including the Effective Time, the Company shall (a) undertake the preparation of, and shall execute and deliver or cause to be delivered to at the trustee under times provided in the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (orCompany Indenture, if such day is not a Business Dayany supplemental indentures, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”)legal opinions, together with any certificates, opinions of counsel officers’ certificates or other documents that may be or instruments required in connection with the execution and delivery of this Agreement or the Redemption Notice to consummation of the Trustee, Merger and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds other transactions contemplated hereby pursuant to the Company in an amount sufficient Indenture or under any Legal Requirements (including a supplemental indenture, officer’s certificate and opinion of counsel pursuant to payArticle XI and Sections 10.01, or otherwise pay on behalf 10.05, 14.07 and 17.05 of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect each case in form and substance reasonably acceptable to Purchaser and relating to the consummation of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause , to be executed and delivered at or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time). The Company shall provide Parent Parent, Purchaser and Merger Sub with a their counsel reasonable opportunity (which shall not be less than three business days) to review and comment on all such notices (including any notices, certificates, press releases, supplemental indentures, legal opinions, officers’ certificates or other documents or instruments deliverable pursuant to or in connection with the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, Company Indenture prior to their delivery the dispatch or publicationmaking thereof, and the Company shall give reasonable and good faith consideration promptly respond to any reasonable questions from, and reflect any reasonable comments made by by, Parent and Merger Subor its counsel with respect thereto prior to the dispatch or making thereof. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that use its reasonable best efforts to cause the trustee under the Company or its counsel may receive from Indenture to execute any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel supplemental indenture described in any material discussions or meetings with any holder of the Convertible Notes or the Trusteethis Section 6.16. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its termsIn addition, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, promptly notify Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to following the occurrence of any event that would require an adjustment to the Effective Timeconversion rate under the Company Indenture.
Appears in 2 contracts
Sources: Merger Agreement (Sucampo Pharmaceuticals, Inc.), Merger Agreement (Mallinckrodt PLC)
Convertible Notes. On (a) At and prior to the Closing DateClosing, the Company shall (a) deliver or cause to be delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem comply in a timely manner with all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 provisions of the 2029 Indenture (and all applicable Legal Requirements in connection therewith applicable to the “Redemption”)Company, together with any certificates, opinions of counsel or other documents that may be required including executing and delivering supplemental indentures to the 2029 Indenture in connection with the delivery of Merger, the Redemption Notice to the Trusteedelivery, and (b) take such actions issuance or entry into any notices, certificates, legal opinions or other documents or instruments required to be taken by comply with the Indenture in order to satisfy and discharge the Company’s obligations thereunder2029 Indenture; provided, that (i) the Company shall deliver a copy of any such supplemental indenture, notice, certificate, legal opinion or other document to Parent reasonably in advance of delivering or Merger Sub shall provide funds entering into such supplemental indenture, notice, certificate, legal opinion or other document in accordance with the terms of the 2029 Indenture and (ii) prior to the Company in an amount sufficient to pay, or otherwise pay on behalf of the CompanyClosing, the Redemption Price Company shall not, except as otherwise set forth in this Section 4.19, amend, modify, supplement or terminate the 2029 Indenture or take any action that would result in a change to the Conversion Rate (as defined in the Indenture2029 Indenture as in effect on the date hereof), together with all other prepaymentin each case, redemption or similar fees that may be payable in connection with without the Redemption. In additionprior written consent of Parent, the Company shall timely deliver or cause such consent not to be delivered to the Trustee and the holders of the Convertible Notes any noticesunreasonably withheld, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause conditioned or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Timedelayed. The Company shall provide Parent and Merger Sub with a its counsel reasonable opportunity to review and comment on all such notices (including any supplemental indentures, notices, certificates or other documents or instruments deliverable pursuant to the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, 2029 Indenture prior to their delivery the dispatch or publicationmaking thereof and, and the Company subject to comments to legal opinions which shall give reasonable and be considered in good faith, shall consider in good faith consideration to any all reasonable comments made provided by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of with respect thereto.
(b) Notwithstanding the Convertible Notes or the Trustee promptly after the receipt thereofforegoing, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary nothing in this Section 5.15, nothing herein 4.19 shall require the Company or any of its Subsidiaries to (i) pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 the 2029 Indenture prior to the occurrence of the Effective Time (including in connection with other than to the settlement of any conversion obligationextent expressly required under such 2029 Indenture), (ii) enter into or effect any settlement, termination, instrument or agreement, or agree to any settlement, termination or any other change or modification to any instrument or agreement, in each case with respect to the 2029 Indentures, that is effective prior to the occurrence of the Effective Time, or (iii) refrain from delivering, or delay the delivery of, any notice required by the terms of the 2029 Indenture (it being understood that to the extent reasonably practicable the Company will provide Parent with prior notice of any such delivery with an opportunity to comment on the relevant notice).
Appears in 1 contract
Convertible Notes. On (a) To the Closing Dateextent required pursuant to the applicable Indenture, prior to the Closing, the Company shall shall: (ai) execute and deliver or cause to be delivered to the applicable trustee under (A) a supplemental indenture to such Indenture, effective upon the Indenture Delaware Merger Effective Time, providing, among other things, that at and after the Delaware Merger Effective Time, each holder of Convertible Notes shall have the right to convert such Convertible Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Company Common Stock equal to the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents that may be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default Conversion Rate” (as such term is defined in the applicable Indenture and including any applicable increase thereto) immediately prior to the Delaware Merger would have owned or been entitled to receive upon the consummation of the Delaware Merger, in each case in accordance with, and subject to the terms of, the applicable Indenture (including the time periods specified therein) and (B) an officer’s certificate, opinion of counsel and any other documentation required to be provided pursuant to the applicable Indenture in connection with such supplemental indenture; and (ii) use its reasonable best efforts to cause the applicable trustee to execute such supplemental indenture at the Delaware Merger Effective Time.
(b) In addition, the Company and the Surviving Delaware Corporation shall take all actions that may be required in accordance with, and subject to the terms of, each Indenture and each Capped Call Confirmation (including, in each case, the time periods specified therein) as a result of the execution and delivery of this Agreement, the Delaware Merger or any of the other Contemplated Transactions, including (i) with respect to each Indenture, the giving of any notices that may be required in connection with any repurchases or conversions of any Convertible Notes occurring as a result of the Delaware Merger constituting a “Fundamental Change” and/or “Make-Whole Fundamental Change,” as such terms are defined in the applicable Indenture, and delivery of any supplemental indentures, legal opinions, officers’ certificates or other documents or instruments required in connection with the consummation of the Delaware Merger, and (ii) or an Event with respect to each Capped Call Confirmation, the giving of Default (any notice of exercise, notice of early conversion and election of any settlement method as a result of the Delaware Merger constituting a “Merger Event,” as such term is defined in the Indenturesuch Capped Call Confirmation.
(c) to occur prior The Company shall provide Marvell with any notices of conversion that it receives with respect to the Effective TimeConvertible Notes promptly upon receipt, and shall settle the conversion of any such Convertible Notes as
(i) with respect to the 2015 Notes, by paying the principal amount of the notes in cash and using shares of Company Common Stock to settle the conversion amount in excess of such principal amount in accordance with the 2015 Indenture, unless Marvell provides its prior written consent with respect to a different settlement election; (ii) with respect to the 2016 Notes, by paying the principal amount of the notes in cash and using shares of Company Common Stock to settle the conversion amount in excess of such principal amount in accordance with the 2016 Indenture, unless Marvell provides its prior written consent with respect to a different settlement election; and (iii) with respect to the 2020 Notes, by using any settlement election available under the 2020 Indenture approved by Marvell in advance in writing. The Company shall provide Parent Marvell and Merger Sub with its counsel a reasonable opportunity to review and comment on all such notices (including the Redemption Notice)any written notice to, publications and other communications to communication with, or document or instrument delivered to, holders of the Convertible Notes Notes, any dealer to any Capped Call Confirmation or the Trustee, any trustee under any Indenture prior to their the delivery or publicationmaking thereof, and the Company shall give reasonable and good faith consideration to any comments comment made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company Marvell or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective Timecounsel.
Appears in 1 contract
Convertible Notes. On (a) The parties hereto expressly acknowledge and agree that, except as may be required in accordance with Section 4.18(b), the Convertible Notes will not be assumed by the Company, Purchaser or any Affiliate thereof and will constitute Retained Liabilities. Seller may, in its reasonable discretion, take actions to amend the Indenture prior to the Closing Dateto delete Article 11 (and, in Seller’s sole discretion, to delete or modify other provisions) of the Indenture, including conducting a tender offer and/or consent solicitation in accordance with applicable Law to acquire the Convertible Notes and/or effect such amendments to the Indenture on such terms and conditions as Seller, in its reasonable discretion, determines (a “Debt Tender Offer”). Seller shall keep Purchaser reasonably informed with respect to the status of the actions taken pursuant to the foregoing. For the avoidance of doubt, neither the commencement nor consummation of a Debt Tender Offer shall in any event constitute a condition to Closing under Article V. Table of Contents
(b) In the event that, at or after the Closing the Indenture has not been amended as permitted in Section 4.18(a) and a court of competent jurisdiction has determined in a final, non-appealable judgment or a judgment that Seller determines, in its reasonable discretion, not to appeal, that the Transactions constitute a sale, conveyance, transfer or lease of all or substantially all of Seller’s properties and assets to another Person (as defined in the Indenture) or otherwise issues a ruling with substantially the same effect:
(i) Seller and the Company will execute and deliver as promptly as practicable following such judgment a supplemental indenture and such instruments, certificates, opinions, agreements and other documents as may be necessary to cause Seller and the Company to satisfy the requirements of the Indenture, including Article 11 thereof, including by causing the Company to assume all of Seller’s obligations under the Convertible Notes and the Indenture, effective upon consummation of the Transactions;
(ii) the Company shall (aA) deliver or cause to be delivered to notify Seller in writing not later than 10:00 a.m. (New York City time) on the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of next Business Day following the Company’s election to redeem all receipt of a Notice of Conversion (as defined in the Indenture) in respect of the conversion of any Convertible Notes thirty (30) days following the Closing (or, if such day is not Note by a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents that may be required in connection with the delivery of the Redemption Notice to the Trusteeholder thereof, and (bB) take such actions required to be taken by the Indenture in order elect to satisfy and discharge its Conversion Obligation (as defined in the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds Indenture) with respect to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price such conversion by Cash Settlement (as defined in the Indenture), together by Physical Settlement (as defined in the Indenture) or by Combination Settlement (as defined in the Indenture), in each case in accordance with the Indenture and as directed in writing by Seller in its sole discretion; provided, that if Seller does not deliver written notice to the Company by 3:00 p.m. (New York City time) on the date it receives the Company’s notice specifying the Settlement Method (as defined in the Indenture) by which the Conversion Obligation should be satisfied, Seller will be deemed to have specified Cash Settlement; and, provided, further, that if Seller specifies Combination Settlement but does not indicate the Specified Dollar Amount (as defined in the Indenture) per $1,000 principal amount of Convertible Notes, the Specified Dollar Amount per $1,000 principal amount of Convertible Notes shall be $1,000;
(iii) at Seller’s election, either (A) the Purchase Price shall be reduced by the principal amount ($1,000 per Convertible Note) of the Convertible Notes that remain outstanding immediately prior to the Closing (the “Principal Amount”), or (B) Seller shall pay to the Company at the Closing the Principal Amount (in which case such payment shall have no impact on the amount of the Purchase Price); provided that, if the execution and delivery by the Company of the supplemental indenture described in Section 4.18(b)(i) occurs after the Closing, Seller shall pay to the Company promptly after such execution and delivery the Principal Amount (in which case such payment shall have no impact on the amount of the Purchase Price);
(iv) simultaneously with the execution and delivery by the Company of the supplemental indenture described in Section 4.18(b)(i), Seller, the Table of Contents Company, Purchaser and a mutually agreed escrow agent will enter into an escrow agreement pursuant to which (A) Purchaser shall, or shall cause the Company to, deposit the Principal Amount into an escrow account (the “Escrow Account”); (B) all or a portion of the Principal Amount not to exceed $1,000 per Convertible Note shall be released from the Escrow Account and applied toward payments to holders of Convertible Notes of (x) the principal due upon maturity of the Convertible Notes, (y) the Settlement Amount (as defined in the Indenture) due upon Cash Settlement, or (z) the Specified Dollar Amount due upon Combination Settlement; (C) all or a portion of the Principal Amount not to exceed $1,000 per Convertible Note shall be released from the Escrow Account and paid to Seller (x) in respect of any Physical Settlement, in an amount equal to the principal amount of any Convertible Notes settled by Physical Settlement or (y) in respect of any Combination Settlements, (I) the principal amount of any Convertible Notes settled by Combination Settlement less (II) the Specified Dollar Amount; and (D) any funds held in the Escrow Account that are not paid to holders of Convertible Notes will, within five (5) Business Days following the later of (x) the earlier of (1) the Maturity Date (as defined in the Indenture), or (2) the date upon which all Convertible Notes have been converted or repurchased and (y) the final satisfaction and settlement by Seller of any further excess obligations relating to or arising out of the Convertible Notes;
(v) in the case of any Cash Settlement or Combination Settlement, if application of the funds in the Escrow Account is not sufficient to pay the Settlement Amount to the holders of Convertible Notes as required under the Indenture, then Seller will provide the amount of any cash shortfall by wire transfer of immediately available funds to the Company not less than one (1) Business Day prior to the date such payments are required to be made to such holders;
(vi) in the case of any Combination Settlement or Physical Settlement, Seller will provide the number of shares of Seller Common Stock (which shall be duly authorized and issued) to the Company required to satisfy the Conversion Obligation by no later than 10:00 a.m. (New York City time) at least two (2) Business Days prior to the date such shares are required to be delivered to such holders;
(vii) until the later of (A) the earlier of (1) the Maturity Date (as defined in the Indenture), or (2) the date upon which all Convertible Notes have been converted or repurchased and (B) the final satisfaction and settlement by Seller of any further excess obligations relating to or arising out of the Convertible Notes, Seller (x) shall at all times reserve and keep available, out of its authorized but unissued Seller Common Stock, solely for the purpose of providing for its obligations under this Section 4.18 and the Convertible Notes, the aggregate number of shares of Seller Common Stock issuable under the Convertible Notes in accordance with the terms thereof, and (y) shall not adopt or enter into, or permit to be adopted or entered into, a plan of complete or partial liquidation or dissolution unless Seller has made provisions reasonably acceptable to Purchaser for the final satisfaction and settlement of any further excess obligations relating to or arising out of the Convertible Notes;
(viii) if Seller (i) consolidates with or merges into any other prepaymentPerson and shall not be the continuing or surviving corporation or entity of such Table of Contents consolidation or merger or (ii) enters into any agreement with a Third Party pursuant to which such Third Party acquires, redemption directly or indirectly, in one transaction or a series of transactions, pursuant to a merger, consolidation, business combination, sale of shares of capital stock, tender offer, exchange offer or similar fees transaction (x) beneficial ownership (as defined under Section 13(d) of the Exchange Act), including if such ownership is through the equityholders of any such Third Party, of more than fifty percent (50%) of any class of equity securities of Seller or (y) any one or more assets or businesses of Seller and its Subsidiaries that constitute more than fifty percent (50%) of the consolidated assets of Seller, then, in each case, Seller shall make proper provision so that the continuing or surviving entity or acquiror (or, if applicable, at Purchaser’s election, the ultimate parent company of such continuing or surviving entity or acquiror), as the case may be, assumes in writing (in form and substance reasonably acceptable to Purchaser), on a joint and several basis, all of the obligations of Seller set forth in this Section 4.18; and
(ix) except as set forth in this Section 4.18(b), Seller will not be required to pay any amount greater than the principal amount of any Convertible Note to purchase any Convertible Note prior to the Maturity Date unless Seller agrees to do so in its sole discretion (or unless the Company would be required to do so under the terms of the Indenture). The obligations under Section 4.18(b) shall terminate and shall become null and void, and there shall be no liability on the part of any party hereto under Section 4.18(b), and all rights and obligations of any party hereto under Section 4.18(b) shall cease, if prior to the Closing, (i) pursuant to the Debt Tender Offer or otherwise, the Indenture is amended to permit the Transactions without assumption of the Convertible Notes by the Company, Purchaser or any Affiliate thereof or (ii) a court of competent jurisdiction determines in a final, non-appealable judgment, that the Transactions do not constitute a sale, conveyance, transfer or lease of all or substantially all of Seller’s properties and assets to another Person (as defined in the Indenture) or otherwise issues a ruling with substantially the same effect. Notwithstanding the foregoing, any and all actions by the Company, Purchaser and their respective Affiliates under this Section 4.18 shall be taken at Seller’s sole cost and expense, and Seller shall indemnify, defend and hold harmless Purchaser and its Affiliates (including, from and after the Closing, the Company) from and against any and all Losses (including for the avoidance of doubt any Losses relating to any securities laws) relating to, arising out of or resulting from the Convertible Notes (including in connection with the Transactions or in connection with the conversion of any such Convertible Notes), but excluding any Losses to the extent fully satisfied by recourse to funds in the Escrow Account in accordance with Section 4.18(b), excluding any Losses to the extent directly resulting from any action or inaction by the Company in material breach (subject to applicable cure rights and periods) of the Indenture or by Purchaser in material breach of the provisions of this Section 4.18, and excluding, for the avoidance of doubt, any premium that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, a tender offer that is voluntarily commenced by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company Purchaser or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with Affiliates following the settlement Closing without Seller’s prior written consent. Table of any conversion obligation), prior to the occurrence of the Effective Time.Contents
Appears in 1 contract
Sources: Stock Purchase Agreement (Yahoo Inc)
Convertible Notes. On No person or entity is committed to purchase any of the Closing DateSecurities offered pursuant to this Offering, and no assurance is or can be given that all or any of the Securities offered hereunder will be sold. Further, although the Company has established an escrow account for the subscription amounts from Subscribers, no minimum amounts of Securities are required to be sold. Proceeds received from the Offering will be available to the Company upon receipt, which the Company intends to promptly utilize in accordance with the terms of the “Use of Proceeds” section of this Subscription Agreement, including the payment of outstanding obligations. The application of the proceeds of the Offering to the payment of current obligations would reduce the ability of the Company to utilize such proceeds for other business purposes. In the event that the Company is unable to sell all or a significant portion of the Securities pursuant to the Offering, the Company shall (a) deliver or cause may have insufficient capital after making the aforesaid payments to be delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of proceed with the Company’s election business strategies and thus may be forced to redeem all seek additional capital sooner than would have been the case had the Offering been fully subscribed. The Company also may need additional funds from loans and/or the sale of securities to repay the Convertible Notes thirty (30) days following the Closing (or, if at their maturity date. There can be no assurance that such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents that may additional funds will be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds available to the Company in an amount sufficient when required on terms acceptable to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined . The Company’s inability to obtain financing on favorable terms could restrict its operations and could materially harm an investment in the Indenture), together with all Company. The Company has not entered into any agreement or letter of intent for the Next Financing or any other prepayment, redemption or similar fees that may be payable in connection with the Redemptionsubsequent financing. In additionthe event the Next Financing is not consummated or other financing obtained, the Company shall timely deliver may not have adequate funds available to repay the Convertible Notes. This Offering is being made on a “best efforts” rather than a firm commitment basis. No commitment exists by anyone, including the Selling Agent, to purchase all or cause any part of the Securities being offered pursuant to this Offering. There can be delivered no assurance that any Securities offered hereby will be sold. Although the Company has established an escrow account for this Offering, there is no “minimum offering” amount required in this Offering and closings may be held and funds released to the Trustee Company at such times and in such amounts, up to the maximum Offering amount, as determined by the Company and Selling Agent in their discretion once the holders of Prior Debt have executed the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective TimeIntercreditor Agreement.
Appears in 1 contract
Sources: Confidential Subscription Agreement (Xenonics Holdings, Inc.)
Convertible Notes. On (a) Notwithstanding anything to the Closing Datecontrary in this Agreement but subject to Section 6.14(c), at or prior to the Effective Time, the Company shall (a) deliver or cause to be delivered to the trustee take all actions required under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all terms of the Convertible Notes thirty Indenture or the Convertible Notes in connection with the Merger and the other transactions contemplated by this Agreement, which actions shall include (30i) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with giving any certificates, opinions of counsel or other documents notices that may be required in connection with the delivery of Merger and the Redemption Notice to the Trusteeother transactions contemplated by this Agreement, (ii) preparing, executing and delivering, and (busing reasonable best efforts to cause the Trustee to execute and deliver, any supplemental indenture(s) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default by this Agreement, in form and substance reasonably satisfactory to the Trustee and Parent, (as such term is defined in the Indentureiii) or an Event delivering any opinions of Default (as such term is defined in the Indenture) counsel required to occur be delivered prior to the Effective TimeTime and any officer’s certificates or other documents or instruments, as may be necessary to comply with all of the terms and conditions of the Convertible Notes Indenture in connection with the Merger and the other transactions contemplated by this Agreement and (iv) delivering the Conversion Consideration (as defined in the Convertible Notes Indenture) in respect of any conversion of the Convertible Notes occurring prior to the Effective Time in accordance with the terms of the Convertible Notes Indenture. For the avoidance of doubt, no other provision set forth in this Agreement shall be deemed to prohibit the Company from effecting the delivery of the Conversion Consideration (as defined in the Convertible Notes Indenture) in respect of any conversions of the Convertible Notes in accordance with the terms of the Convertible Notes and the Convertible Notes Indenture, and any action taken in furtherance of the foregoing shall be deemed in compliance with the terms of this Agreement.
(b) The Company shall shall, unless otherwise prohibited by applicable Law, provide Parent and Merger Sub with a reasonable its counsel as promptly as possible, and to the extent practicable, at least three (3) Business Days prior to issuance or delivery an opportunity to review and comment on all such notices (including the Redemption Notice)any notices, publications and certificates, press releases, supplemental indentures, opinions of counsel or other communications documents or instruments deliverable pursuant to holders of the Convertible Notes or the Trustee, Indenture prior to their delivery the dispatch or publicationmaking thereof, and the Company shall give incorporate all reasonable and good faith consideration to any comments made provided by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and with respect thereto.
(iic) a reasonable opportunity Prior to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its termsTime, the Company shall use commercially reasonable efforts to coordinate discussions among not amend, modify, supplement or terminate the Company, Convertible Notes Indenture without the prior written consent of Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this other than as required by Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation6.14(a), prior to the occurrence of the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Cerevel Therapeutics Holdings, Inc.)
Convertible Notes. On the Closing Date, the Company shall (a) deliver The Company shall settle in cash any conversion requests made by holders of Convertible Notes that become payable in connection with this Agreement or cause the transactions contemplated hereby unless holders of Convertible Notes become entitled to be delivered to receive a combination of cash and shares of Company Common Stock as set forth in the trustee under Indenture, dated April 30, 2007, between the Indenture Company and ▇▇▇▇▇ Fargo Bank, National Association, as Trustee (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “RedemptionIndenture”), together with any certificates, opinions of counsel or other documents that may be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub . The Company shall provide funds to the Company in not make an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price irrevocable Physical Settlement Election (as such term is defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the .
(b) The Company shall use its reasonable best efforts to timely deliver or cause to be delivered to the Trustee all notices and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any all other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and or the other transactions contemplated herebyhereby including, for the avoidance of doubt, any notices or opinions of counsel and other actions necessary to allow Parent to execute a supplemental indenture and become the Company's successor under the Indenture in accordance with its terms. The Company shall provide Parent, Merger Sub and their counsel with a reasonable opportunity to review and comment on all such notices and other communications to holders of the Convertible Notes, the Trustee or any depository, prior to their delivery, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. The Company shall provide Parent with copies of all such notices and other communications. The Company shall provide Parent and Merger Sub with advance notice of any election proposed to be made by the Company under the Indenture, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel regarding any such election. The Company shall use its reasonable best efforts not to cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall promptly provide Parent and Parent, Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub counsel with (i) any communications, whether written or oral, communications that the Company or its counsel may receive from any holder of the Convertible Notes or Notes, the Trustee or any depository promptly after the receipt thereofof those communications, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its termsNotes, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective Timedepository.
Appears in 1 contract
Convertible Notes. On As of the Closing DateEffective Time, the Company Dermira and Lilly shall (a) deliver or cause to be have executed and delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents that may be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price Trustee (as defined in the indenture (the “Indenture)”) under which Dermira’s 3.00% Convertible Senior Notes due 2022 (the “Convertible Notes”) were issued) a notice of merger event, together with all other prepaymentand Dermira shall have caused the Trustee to execute and deliver a supplemental indenture, redemption or similar fees as and to the extent required by the Indenture, including to provide that may be payable on and after the Effective Time, each holder of Convertible Notes will have the right to convert such Convertible Notes into the conversion consideration determined by reference to the consideration receivable upon consummation of the Merger in connection with the Redemption. In additionrespect of each Share in accordance with, and subject to, the Company shall timely deliver or cause to be delivered to provisions of the Trustee and Indenture governing the holders conversion of the Convertible Notes issued thereunder. Prior to the Effective Time, ▇▇▇▇▇▇▇ is required to provide any notices, publications, certificates, officer’s certificates and legal opinions that may be required under the terms of counsel and other communications required the Convertible Notes or the Indenture to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur provided prior to the Effective Time. The Company Stockholder Litigation. Until the termination of the Merger Agreement in accordance with its terms, Dermira shall provide Parent and Merger Sub with a reasonable Lilly an opportunity to review and comment to propose comments to all material filings or responses to be made by Dermira in connection with any Proceeding commenced, or to the knowledge of Dermira, threatened in writing, by or on all such notices (including the Redemption Notice), publications behalf of one or more stockholders of Dermira against Dermira and other communications its directors relating to holders any of the Convertible Notes or the Trustee, prior to their delivery or publicationTransactions, and the Company ▇▇▇▇▇▇▇ shall give reasonable and good faith consideration to any comments made proposed by Parent and Lilly. In no event shall Dermira enter into, agree to or disclose any settlement with respect to such Proceedings without ▇▇▇▇▇’▇ consent, such consent not to be unreasonably withheld, delayed or conditioned, with certain exceptions set forth in the Merger SubAgreement. The Company Dermira shall provide Parent with copies of all such notices, publications and other communications. The Company shall notify Lilly promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes commencement or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement written threat of any conversion obligation), prior to the occurrence such Proceeding of the Effective Timewhich it has received notice or become aware and shall keep Lilly promptly and reasonably informed regarding any such Proceedings.
Appears in 1 contract
Sources: Offer to Purchase (ELI LILLY & Co)
Convertible Notes. On (a) The Company shall take all actions as may be required in accordance with, and subject to the terms of, the applicable provisions of the Company Indenture, including the giving of any notices required by the Company Indenture (including those notices that may be required pursuant to Section 11.02, Section 15.01(b), Section 15.02, Section 15.03, Section 15.06, 15.09 and Section 19.02 thereof, in each case to the extent applicable) in connection with the Transactions and any repurchases or conversions of the Convertible Notes issued under the Company Indenture occurring as a result of or in connection with the transactions contemplated by this Agreement constituting a Fundamental Change (as defined in the Company Indenture).
(b) The Company shall, prior to the Closing Date, the Company shall (a) deliver or cause to be delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with prepare any certificates, opinions of counsel or other documents that may be supplemental indentures required in connection with the delivery of Transactions and the Redemption Notice consummation thereof to be executed and delivered to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price Trustee (as defined in the Company Indenture) at or prior to the Effective Time and satisfactory in form and substance to the Trustee.
(c) The Company shall not make any settlement election (including, for the avoidance of doubt, by not delivering a Settlement Notice (as defined in the Company Indenture) with respect to any Conversion Date (as defined in the Company Indenture)) under the Company Indenture without the prior written consent of Parent, together which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Company shall take all such further actions, including the delivery of any officers’ certificates and opinions of counsel required by the Company Indenture (including by Section 4.01, Section 11.05, Section 12.03 and Section 15.06 thereof, in each case to the extent applicable) as may be necessary to comply with all other prepayment, redemption or similar fees that may be payable of the terms and conditions of the Company Indenture in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default Transactions.
(as such term is defined in the Indenturee) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent and Merger Sub with a its counsel reasonable opportunity to review and comment on all such notices (including any written notice or communication and any notices, certificates, press releases, supplemental indentures, legal opinions, officers’ certificates or other documents or instruments deliverable pursuant to or in connection with the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, Company Indenture prior to their delivery the dispatch or publicationmaking thereof, and the Company shall consult with Parent or its counsel with respect thereto and give reasonable and good faith due consideration to any comments recommendations made by Parent and Merger Sub. or its counsel prior to the dispatch or making thereof.
(f) The Company shall provide Parent with copies of all such notices, publications represents and other communications. The Company shall promptly provide warrants to Parent and Merger Sub that, concurrently with (i) any communicationsthe execution and delivery of this Agreement, whether written or oral, that each of the Company or its counsel may receive from any holder Bond Hedge Transaction and the Company Warrants, and the respective rights and obligations of the Convertible Notes or Company and the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity counterparty to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement Bond Hedge Transaction and the Effective Time or the earlier termination of this Agreement Company Warrants, have been terminated, cancelled and extinguished and deemed satisfied and discharged in accordance full with its terms, neither the Company shall use commercially reasonable efforts nor the counterparty to coordinate discussions among the Company, Parent Company Bond Hedge Transaction and the Trustee regarding the Redemption. Notwithstanding anything Company Warrants obligated to the contrary in this Section 5.15, nothing herein shall require the Company make or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make receive any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective Timesuch termination.
Appears in 1 contract
Convertible Notes. (a) On the Closing Date, Parent, Merger Sub and the Company shall, as and to the extent required by the Convertible Notes Indenture, execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) required by the Convertible Notes Indenture as a result of the Merger and deliver any certificates and other documents required by the Convertible Notes Indenture to be delivered by such persons in connection with such supplemental indenture(s). Notwithstanding anything to the contrary in this Agreement and subject to the immediately preceding sentence, prior to the Effective Time, the Company shall (a) deliver or cause to be delivered to the trustee give any notices and take all actions required under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all terms of the Convertible Notes thirty (30) days following or the Closing (orConvertible Notes Indenture as a result of the Merger, if such day is not a Business Daywhich actions shall include, without limitation, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture Company (the “Redemption”), together with any certificates, opinions of counsel or its Subsidiaries or other documents Representatives, as applicable) (i) giving any notices that may be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders other transactions contemplated by this Agreement and settling any conversions of the Convertible Notes any notices, publications, certificates, opinions occurring prior to or as a result of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Merger in accordance with the terms of the Convertible Notes Indenture, (ii) preparing any supplemental indentures required in respect of the Offer, connection with the Merger and the other transactions contemplated hereby. The Company shall not cause by this Agreement and the consummation thereof to be executed and delivered to the Trustee at or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent , in form and Merger Sub with a reasonable opportunity substance reasonably satisfactory to review the Trustee and comment on Parent, and (iii) taking all such notices (including further actions, including, without limitation, delivering any officer’s certificates and legal opinions, as are necessary to comply with all of the Redemption Notice), publications terms and other communications to holders conditions of the Convertible Notes or Indenture in connection with the Trustee, prior to their delivery or publication, Merger and the Company shall give reasonable and good faith consideration to any comments made other transactions contemplated by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the RedemptionAgreement. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation)Agreement, prior to the occurrence Effective Time, the Company will settle conversions, if any, of the Effective TimeConvertible Notes as required pursuant to the terms of the Convertible Notes Indenture. For the avoidance of doubt, the transactions contemplated by this Agreement, wherever referred to in Section 6.1 of this Agreement, shall be deemed to include effecting settlements of any conversions under the terms of the Convertible Notes and the Convertible Notes Indenture.
(b) The Company shall provide Parent and its counsel at least three (3) Business Days to review and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable pursuant to the Convertible Notes Indenture prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect thereto.
Appears in 1 contract
Sources: Merger Agreement (Kaleyra, Inc.)
Convertible Notes. On (a) To the Closing Dateextent required pursuant to the applicable Indenture, prior to the Closing, the Company shall shall: (ai) execute and deliver or cause to be delivered to the applicable trustee under (A) a supplemental indenture to such Indenture, effective upon the Indenture Delaware Merger Effective Time, providing, among other things, that at and after the Delaware Merger Effective Time, each holder of Convertible Notes shall have the right to convert such Convertible Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Company Common Stock equal to the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents that may be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default Conversion Rate” (as such term is defined in the applicable Indenture and including any applicable increase thereto) immediately prior to the Delaware Merger would have owned or been entitled to receive upon the consummation of the Delaware Merger, in each case in accordance with, and subject to the terms of, the applicable Indenture (including the time periods specified therein) and (B) an officer’s certificate, opinion of counsel and any other documentation required to be provided pursuant to the applicable Indenture in connection with such supplemental indenture; and (ii) use its reasonable best efforts to cause the applicable trustee to execute such supplemental indenture at the Delaware Merger Effective Time.
(b) In addition, the Company and the Surviving Delaware Corporation shall take all actions that may be required in accordance with, and subject to the terms of, each Indenture and each Capped Call Confirmation (including, in each case, the time periods specified therein) as a result of the execution and delivery of this Agreement, the Delaware Merger or any of the other Contemplated Transactions, including (i) with respect to each Indenture, the giving of any notices that may be required in connection with any repurchases or conversions of any Convertible Notes occurring as a result of the Delaware Merger constituting a “Fundamental Change” and/or “Make-Whole Fundamental Change,” as such terms are defined in the applicable Indenture, and delivery of any supplemental indentures, legal opinions, officers’ certificates or other documents or instruments required in connection with the consummation of the Delaware Merger, and (ii) or an Event with respect to each Capped Call Confirmation, the giving of Default (any notice of exercise, notice of early conversion and election of any settlement method as a result of the Delaware Merger constituting a “Merger Event,” as such term is defined in the Indenturesuch Capped Call Confirmation.
(c) to occur prior The Company shall provide Marvell with any notices of conversion that it receives with respect to the Effective TimeConvertible Notes promptly upon receipt, and shall settle the conversion of any such Convertible Notes as follows:
(i) with respect to the 2015 Notes, by paying the principal amount of the notes in cash and using shares of Company Common Stock to settle the conversion amount in excess of such principal amount in accordance with the 2015 Indenture, unless Marvell provides its prior written consent with respect to a different settlement election; (ii) with respect to the 2016 Notes, by paying the principal amount of the notes in cash and using shares of Company Common Stock to settle the conversion amount in excess of such principal amount in accordance with the 2016 Indenture, unless Marvell provides its prior written consent with respect to a different settlement election; and (iii) with respect to the 2020 Notes, by using any settlement election available under the 2020 Indenture approved by Marvell in advance in writing. The Company shall provide Parent Marvell and Merger Sub with its counsel a reasonable opportunity to review and comment on all such notices (including the Redemption Notice)any written notice to, publications and other communications to communication with, or document or instrument delivered to, holders of the Convertible Notes Notes, any dealer to any Capped Call Confirmation or the Trustee, any trustee under any Indenture prior to their the delivery or publicationmaking thereof, and the Company shall give reasonable and good faith consideration to any comments comment made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company Marvell or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective Timecounsel.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (INPHI Corp)
Convertible Notes. On Prior to the Closing DateClosing, the Company shall take all actions required by, or reasonably requested by Parent pursuant to and in compliance with, the Convertible Notes Indenture (or as required by applicable Law with respect to the Convertible Notes or the Convertible Notes Indenture) to be performed by the Company as a result of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby, including (a) deliver or cause to be delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) giving of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents notices that may be required by the Convertible Notes Indenture or reasonably requested by Parent, including in connection with the delivery any repurchases or conversions of Convertible Notes occurring as a result of the Redemption Notice to transactions contemplated by this Agreement constituting a “Fundamental Change” or “Make-Whole Fundamental Change” as such terms are defined in the TrusteeConvertible Notes Indenture, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds delivery to the Company in an amount sufficient to payTrustee, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes or other applicable Person, as applicable, of any notices, publicationsinstruments, certificates, opinions of the Company’s counsel and or other communications documents required to be delivered, and timely take any other actions required to be taken, by the IndentureConvertible Notes Indenture or by the Trustee or reasonably requested by Parent in connection with the execution, in respect delivery or performance of the Offerthis Agreement, the Merger and the other transactions contemplated herebyhereby or as otherwise required by, or reasonably requested by Parent pursuant to or in compliance with, the Convertible Notes Indenture and any applicable Law. The Company shall not cause deliver a copy of any such notice, instrument, certificate, opinion or permit a Default other document to Parent at least three (3) Business Days (or such shorter period of time as such term is defined in may be required to comply with the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders terms of the Convertible Notes Indenture or the Trustee, any applicable Law) prior to their delivery delivering such notice or publicationentering into such other document or instrument, and the Company shall give reasonable and good faith consideration to consider any comments made thereto proposed by Parent and Merger Subin good faith. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that Without limiting the Company or its counsel may receive from any holder generality of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its termsforegoing, the Company shall use commercially reasonable efforts cooperate with Parent by executing and delivering (or causing to coordinate discussions among the Companybe executed and delivered, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligationas applicable), prior to the occurrence Effective Time and in accordance with the Convertible Notes Indenture, a supplemental indenture and any other documents or instruments as may be requested by the Trustee in connection with the execution of such supplemental indenture, in each case in form and substance reasonably acceptable to the Effective TimeTrustee and Parent, pursuant to and with such terms as required under the Convertible Notes Indenture.
Appears in 1 contract
Sources: Merger Agreement (Zogenix, Inc.)
Convertible Notes. On the Closing Date, the Company shall (a) deliver The Company shall settle in cash any conversion requests made by holders of Convertible Notes that become payable in connection with this Agreement or cause the transactions contemplated hereby unless holders of Convertible Notes become entitled to be delivered to receive a combination of cash and shares of Company Common Stock as set forth in the trustee under Indenture, dated April 30, 2007, between the Indenture Company and ▇▇▇▇▇ Fargo Bank, National Association, as Trustee (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “RedemptionIndenture”), together with any certificates, opinions of counsel or other documents that may be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub . The Company shall provide funds to the Company in not make an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price irrevocable Physical Settlement Election (as such term is defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the .
(b) The Company shall use its reasonable best efforts to timely deliver or cause to be delivered to the Trustee all notices and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any all other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and or the other transactions contemplated herebyhereby including, for the avoidance of doubt, any notices or opinions of counsel and other actions necessary to allow Parent to execute a supplemental indenture and become the Company’s successor under the Indenture in accordance with its terms. The Company shall provide Parent, Merger Sub and their counsel with a reasonable opportunity to review and comment on all such notices and other communications to holders of the Convertible Notes, the Trustee or any depository, prior to their delivery, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. The Company shall provide Parent with copies of all such notices and other communications. The Company shall provide Parent and Merger Sub with advance notice of any election proposed to be made by the Company under the Indenture, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel regarding any such election. The Company shall use its reasonable best efforts not to cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall promptly provide Parent and Parent, Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub counsel with (i) any communications, whether written or oral, communications that the Company or its counsel may receive from any holder of the Convertible Notes or Notes, the Trustee or any depository promptly after the receipt thereofof those communications, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its termsNotes, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective Timedepository.
Appears in 1 contract
Convertible Notes. On To the Closing Dateextent required pursuant to the Indenture, the Company shall shall: (a) deliver or cause to be delivered provide notice of the Merger to the trustee under Trustee when and as required pursuant to the Indenture; (b) execute and deliver to the Trustee: (i) a supplemental indenture to the Indenture, effective upon the Effective Time, to provide, among other things, that at and after the Effective Time, each holder of Convertible Notes shall have the right to convert such Convertible Notes into the conversion consideration determined by reference to the consideration receivable upon consummation of the Merger in respect of each share of Company Common Stock in accordance with, and subject to, the provisions of the Indenture (governing the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all conversions of the Convertible Notes thirty issued thereunder (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (including any applicable increase in the “Redemption”), together with any certificates, opinions of counsel or other documents that may be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default (Conversion Rate” as such term is defined in the Indenture), in each case in accordance with, and subject to the terms of, the Indenture (including the time periods specified therein); and (ii) an officer’s certificate, opinion of counsel and any other documentation required to be provided pursuant to the Indenture in connection with the consummation of the Merger or an Event of Default in connection with such supplemental indenture; and (as c) use commercially reasonable efforts to cause the Trustee to execute such term is defined in the Indenture) to occur prior to supplemental indenture at the Effective Time. The Company shall not make any settlement election under the Indenture relating to the Convertible Notes without the prior written consent of Parent. The Company shall provide Parent and Merger Sub with a its counsel reasonable opportunity to review and comment on all such notices (including the Redemption Notice)any written notice to, publications and other communications communication with or document or instrument delivered to holders of the Convertible Notes or the Trustee, Trustee under the Indenture prior to their the delivery or publicationmaking thereof, and the Company shall give reasonable and good faith consideration to any comments comment made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective Timecounsel.
Appears in 1 contract
Sources: Agreement and Plan of Merger (ADESTO TECHNOLOGIES Corp)
Convertible Notes. (a) On the Closing Date, Parent, Merger Sub and the Company shall (ashall, as and to the extent required by the Convertible Notes Indenture, execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) required by the Convertible Notes Indenture and deliver or cause any certificates and other documents required by the Convertible Notes Indenture to be delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, if by such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents that may be required persons in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenturesupplemental indenture(s), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15Agreement and subject to the immediately preceding sentence, nothing herein shall require prior to the Effective Time, the Company shall take all actions required under the terms of the Convertible Notes Indenture or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any the Convertible Note or this Section 5.15 (including Notes in connection with the settlement Merger and the other transactions contemplated by this Agreement, which actions shall include, without limitation, the Company (or its Subsidiaries or other Representatives, as applicable) delivering Conversion Consideration (as defined in the Convertible Notes Indenture) in respect of any conversion obligation)conversions of Convertible Notes occurring prior to the Effective Time in accordance with the terms of the Convertible Notes Indenture. Notwithstanding anything to the contrary in this Agreement, prior to the occurrence Effective Time, the Company may only elect Cash Settlement (as defined in the Convertible Notes Indenture) with respect to any conversion of Convertible Notes under the Convertible Notes Indenture and otherwise settle any such conversions of the Effective TimeConvertible Notes pursuant to the terms of the Convertible Notes Indenture. For the avoidance of doubt, the transactions contemplated by this Agreement, wherever referred to in Section 6.1 of this Agreement, shall be deemed to include effecting the delivery of Conversion Consideration (as defined in the Convertible Notes Indenture) in respect of any conversions of Convertible Notes in accordance with the terms of the Convertible Notes and the Convertible Notes Indenture.
(b) The Company shall, unless otherwise prohibited by applicable Law, provide Parent and its counsel as promptly as possible, and to the extent practicable, at least three (3) Business Days prior to issuance or delivery to review and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable pursuant to the Convertible Notes Indenture prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect thereto.
Appears in 1 contract
Convertible Notes. On (a) Parent and/or the Merger Sub will be permitted, at their option, to commence and conduct, in accordance with the terms of the Indenture, one or more offers to purchase and (if it so elects) to conduct a consent solicitation (a “Debt Offer”) with respect to the outstanding Convertible Notes. If the Parent and/or Merger Sub elect to conduct a Debt Offer, Parent shall provide the Company with drafts of the necessary offer to purchase, letter of transmittal or other related documents in connection with the Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of any Debt Offer shall be expressly conditioned on the satisfaction of the conditions to the Closing or the acceptance for purchase of the Convertible Notes by Parent or Merger Sub, and the Company shall reasonably cooperate with Parent and Merger Sub to cause any such Debt Offer to close on the Closing Date. For the avoidance of doubt; the consummation of a Debt Offer shall not be a condition to Closing. If the Parent and/or Merger Sub elect to conduct a Debt Offer, (i) the Debt Offer shall be conducted in compliance with the Indenture and applicable Law, including all SEC rules and regulations, and (ii) the Company shall, and shall cause its Subsidiaries and their respective Company Representatives to use their reasonable best efforts to, provide all cooperation reasonably requested by Parent in connection with any Debt Offer, at the sole expense of Parent.
(b) Subject to the receipt of any requisite consents, the Company shall (a) deliver or cause to be delivered execute a supplemental indenture to the trustee under Indenture in accordance with the Indenture, amending the terms and provisions of the Indenture (as described in the “Trustee”) written notice (Debt Offer Documents as reasonably requested by Parent or Merger Sub, which supplemental indenture shall become operative no earlier than the “Redemption Notice”) of Closing Date or the Company’s election to redeem all acceptance for purchase of the Convertible Notes thirty (30) days following by Parent or Merger Sub, and shall use commercially reasonable efforts to cause the Trustee to enter into such supplemental indenture prior to or substantially simultaneously with the Closing (oras determined by Parent; provided, if such day however, that in no event shall the Company or any of its officers, directors or other Company Representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not a Business Daypermitted under applicable Law or would become operative prior to the Closing Date or the time of acceptance for purchase of the Convertible Notes by Parent or Merger Sub. The Company shall use its, and shall cause its Company Representatives to use their, commercially reasonable efforts to, provide all cooperation reasonably requested by Parent in connection with the execution of the supplemental indentures referred to in the immediately preceding sentence, at the sole expense of Parent. If requested by Parent, the first Business Day thereafterCompany shall use its commercially reasonable efforts to cause its legal counsel to provide all customary legal opinions required in connection with the transactions contemplated by this Section 6.12(b) pursuant to Section 6.01 the extent such legal opinion is required to be delivered prior to the Closing Date. Notwithstanding the foregoing, in no event shall the Company or its legal counsel be required to give an opinion with respect to a Debt Offer that in the opinion of the Indenture (the “Redemption”)Company, together with any certificates, opinions of its legal counsel or other documents the Trustee does not comply with applicable Laws or the Indenture, or an opinion with respect to financing by Parent or Merger Sub.
(c) Prior to the Effective Time, the Company shall take all actions required by the Indenture to be performed by the Company as a result of the execution and delivery of this Agreement and the consummation of the Transactions, including the giving of any notices that may be required in connection with the Convertible Notes and the delivery of the Redemption Notice to the TrusteeTrustee of any certificates, and (b) take such actions opinions, documents or instruments required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee Trustee, in each case, in connection with the Transactions or otherwise required pursuant to the terms of the Indenture as reasonably determined by Parent. Following the Effective Time, if any Convertible Notes remain outstanding, Parent shall cause the Surviving Corporation to (at Parent’s sole expense) take all actions required by the Indenture to be performed by the Company as a result of the execution and delivery of this Agreement and the holders consummation of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause by this Agreement, including the giving of any notices that may be required in connection with the Convertible Notes, the delivery to the Trustee of any certificates, opinions, documents or permit a Default (as instruments required to be delivered to the Trustee in connection with such term is defined in transactions or otherwise required pursuant to the terms of the Indenture.
(d) or an Event of Default (as such term is defined in the Indenture) Parent agrees to occur prior to the Effective Time. The Company shall provide Parent hold harmless and Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among reimburse the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any feesand their respective Company Representatives from and for all costs, expenses and liabilities such Persons may incur for actions taken at the direction or reimburse any costs request of Parent or expenses, or make any payment its representatives in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation)Debt Offer, prior except to the occurrence extent incurred as a result of the Effective Timebad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company, its Subsidiaries and their respective Company Representatives, and such Company Representatives shall be express third party beneficiaries of this sentence, and Parent’s obligation in this sentence shall survive any termination or expiration of this Agreement.
Appears in 1 contract
Convertible Notes. (a) On the Closing Date, Parent, Merger Sub and the Company shall, as and to the extent required by the Convertible Notes Indenture, execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture required by the Convertible Notes Indenture and deliver any certificates and other documents required by the Convertible Notes Indenture to be delivered by such Persons in connection with such supplemental indenture. Notwithstanding anything to the contrary in this Agreement and subject to the immediately preceding sentence, prior to the Effective Time, the Company shall (a) deliver or cause give any notices and take all actions required under, and with the prior consent of Parent, not to be delivered unreasonably withheld, conditioned or delayed, may take actions permitted under, the terms of the Convertible Notes, the Convertible Notes Indenture or under Applicable Law, and shall take any other actions reasonably requested by Parent to the trustee under extent such actions are permitted or contemplated by, the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all terms of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business DayIndenture, the first Business Day thereafterConvertible Notes or any Applicable Law (with respect to the Convertible Notes Indenture or the Convertible Notes) pursuant to Section 6.01 of in connection with the Indenture Merger and the other transactions contemplated by this Agreement, which actions shall include the Company (the “Redemption”), together with any certificates, opinions of counsel or its Subsidiaries or other documents Representatives, as applicable) (i) giving any notices that may be required in connection with the delivery of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders other transactions contemplated by this Agreement and making any repurchases or conversions of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required occurring prior to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect or as a result of the OfferMerger, (ii) preparing any supplemental indentures required in connection with the Merger and the other transactions contemplated hereby. The Company shall not cause by this Agreement and the consummation thereof to be executed and delivered to the Trustee at or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent , in form and Merger Sub with a reasonable opportunity substance reasonably satisfactory to review the Trustee and comment on Parent, and (iii) taking all such notices (further actions, including delivering any officer’s certificates and legal opinions, as may be necessary to comply with all of the Redemption Notice), publications terms and other communications to holders conditions of the Convertible Notes or Indenture in connection with the TrusteeMerger and the other transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreement, prior to their delivery or publicationthe Effective Time, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder settle conversions of the Convertible Notes or pursuant to the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder terms of the Convertible Notes or Indenture. For the Trustee. Between avoidance of doubt, the date of transactions contemplated by this Agreement shall be deemed to include effecting any conversions under the terms of the Convertible Notes and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the RedemptionConvertible Notes Indenture. Notwithstanding anything to the contrary in this Section 5.158.05, but subject to the terms of the Convertible Notes Indenture, nothing herein shall require the Company to make any payment with respect to the Convertible Notes in connection with the Merger (including in connection with the settlement of any conversion obligations), prior to the occurrence of the Effective Time.
(b) The Company shall use its reasonable best efforts to provide Parent and its counsel reasonable opportunity to review and comment on any notices, certificates, press releases, supplemental indentures or any of other documents or instruments deliverable pursuant to the Convertible Notes Indenture prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its Subsidiaries counsel with respect thereto.
(c) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that nothing in this Section 8.05 shall require the Company to (i) pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective TimeTime for which it has not first received full reimbursement or is not otherwise indemnified or subject to reimbursement under this Agreement; (ii) enter into any instrument or agreement, or agree to any change, adjustment, waiver or modification to or termination or unwind of any instrument or agreement, that is effective prior to the occurrence of the Effective Time or that would be effective if the Effective Time did not occur; or (iii) provide access to or disclose information that would reasonably be expected to jeopardize attorney-client privilege or any other privilege (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of such privilege) or contravene Applicable Law or violate any contract to which the Company or any of its Subsidiaries is party and entered into prior to the date of this Agreement. For the avoidance of doubt, and without limiting the obligations in this Section 8.05, each of Parent and ▇▇▇▇▇▇ Sub acknowledges and agrees that its obligations to consummate the transactions contemplated by this Agreement are not conditioned upon either the execution of any supplemental indenture pursuant to the Convertible Notes Indenture by the Trustee.
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Convertible Notes. On To the Closing Dateextent required pursuant to the Indenture, the Company Company, the Surviving Corporation and Parent shall (a) take all necessary action to execute and deliver or cause to be delivered a supplemental indenture to the trustee under Trustee (as defined in the Indenture (Indenture) to the “Trustee”) written notice (Indenture, effective upon the “Redemption Notice”) Effective Time, to provide, among other things, that on and after the Effective Time, each holder of Convertible Notes shall have the right to convert such Convertible Notes into the conversion consideration determined by reference to the consideration receivable upon consummation of the Company’s election to redeem all Merger in respect of each share of Company Common Stock in accordance with, and subject to, the provisions of the Supplemental Indenture governing the conversions of the Convertible Notes thirty issued thereunder (30) days following including any applicable increase in the Closing (or“Conversion Rate”), if such day is not a Business Dayin each case in accordance with, and subject to, the first Business Day thereafter) pursuant Indenture (including the time periods specified therein). In addition, the Company and the Surviving Corporation shall take commercially reasonable efforts to Section 6.01 take all such actions as may be required in accordance with, and subject to, the terms of the Indenture (including the “Redemption”time periods specified therein), together with including the giving of any certificates, opinions of counsel or other documents notices that may be required in connection with the delivery any repurchases or conversions of the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in an amount sufficient to pay, or otherwise pay on behalf Convertible Notes occurring as a result of the Company, the Redemption Price (Transactions constituting a “Fundamental Change” and/or “Make-Whole Fundamental Change” as such terms are defined in the Supplemental Indenture), together with all and delivery of any supplemental indentures, legal opinions, officers’ certificates or other prepayment, redemption documents or similar fees that may be payable instruments required in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders consummation of the Convertible Notes any notices, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated herebyMerger. The Company shall not cause or permit a Default (as such term is defined in make any settlement election under the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior Supplemental Indenture relating to the Effective TimeConvertible Notes without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed. The Company shall provide Parent and Merger Sub with a its counsel reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications any written notice or communication to or with holders of the Convertible Notes or with the Trustee, Trustee under the Indenture prior to their delivery the dispatch or publicationmaking thereof, and the Company shall give reasonable and good faith consideration to any comments comment made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of the Effective Timecounsel.
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Convertible Notes. On (a) At and prior to the Closing DateClosing, the Company shall comply in a timely manner with all of the provisions of the Indenture and Capped Call Confirmations and all applicable Legal Requirements in connection therewith, in each case, applicable to the Company, including executing and delivering any supplemental indenture(s) to the Indenture in connection with the Merger, the delivery, issuance or entry into any notices, certificates or other documents or instruments required to comply with the Indenture or Capped Call Confirmations; provided, that (i) the Company shall deliver a copy of any such supplemental indenture, notice, certificate or other document to Parent reasonably in advance of delivering or entering into such supplemental indenture, notice, certificate or other document in accordance with the terms of the Indenture or Capped Call Confirmations and (ii) prior to the Closing, the Company shall not, except as otherwise set forth in this Section 5.8, amend, modify, supplement or terminate the Indenture or take any action that would result in a change to the Conversion Rate (as defined in the Indenture as in effect on the date hereof), in each case, without the prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
(b) Prior to the Effective Time, the Company shall (ai) deliver or cause to be delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem take all of the Convertible Notes thirty (30) days following the Closing (or, if such day is not a Business Day, the first Business Day thereafter) pursuant to Section 6.01 of the Indenture (the “Redemption”), together with any certificates, opinions of counsel or other documents that may be required actions reasonably requested by Parent in connection with making elections under, amending, negotiating adjustments, obtaining waivers or unwinding the delivery Capped Call Confirmations or otherwise settling the Capped Call Confirmations effective as of on or after the Redemption Notice Effective Time, (ii) promptly advise Parent of any notices or other communications with the counterparties to the Trustee, and Capped Call Confirmations in respect of any settlement or termination thereof or adjustment thereto (b) take such actions required to be taken including notices of adjustments received by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or Merger Sub shall provide funds to the Company in arising out of an amount sufficient to pay, or otherwise pay on behalf of the Company, the Redemption Price Announcement Event (as defined in the IndentureCapped Call Confirmations)), together and (iii) cooperate with all other prepaymentParent with respect to its efforts to settle, redemption terminate or similar fees amend the Capped Call Confirmations effective as of on or after the Effective Time and the negotiation of any adjustment, termination or settlement payment or valuation related thereto or the negotiation of any amendment thereto, as applicable; provided, that may the Company shall not agree to amend, modify or supplement the terms relating to any Capped Call Confirmation, or affirmatively agree to any adjustment thereto or amount due upon the termination or settlement thereof, in each case, without the prior written consent of Parent, such consent not to be payable unreasonably withheld, conditioned or delayed. If requested by Parent, the Company shall engage a hedging advisor in connection with the Redemption. In addition, the Company actions set forth in this Section 5.8(b); provided that such hedging advisor shall timely deliver or cause to be delivered reasonably acceptable to the Trustee Company; provided, further, that all fees and costs of any such hedging advisor that are not contingent upon the holders occurrence of the Convertible Notes any noticesClosing or are payable prior to the Closing, publications, certificates, opinions of counsel shall be at Parent’s sole cost and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated herebyexpense. The Company shall not cause or permit a Default (as such term is defined enter into any binding agreements in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur prior to the Effective Time. The Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders respect of the Convertible Notes Capped Call Confirmations without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(c) Notwithstanding the Trusteeforegoing, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to participate with the Company or its counsel in any material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary nothing in this Section 5.15, nothing herein 5.8 shall require the Company or any of its Subsidiaries to (i) pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with the Indenture or any Convertible Note Capped Call Confirmation prior to the occurrence of the Effective Time (other than to the extent expressly required under the Indenture or this Section 5.15 (including in connection with any Capped Call Confirmation or for which Parent agrees to reimburse the settlement of any conversion obligationCompany), (ii) enter into or effect any settlement, termination, instrument or agreement, or agree to any settlement, termination or any other change or modification to any instrument or agreement, in each case with respect to the Indenture or any Capped Call Confirmation, that is effective prior to the occurrence of the Effective Time, or (iii) refrain from delivering, or delay the delivery of, any notice required by the terms of the Indenture or the Capped Call Confirmations (it being understood that the Company will provide Parent with prior notice of any such delivery with an opportunity to comment on the relevant notice).
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Sources: Merger Agreement (PetIQ, Inc.)
Convertible Notes. On Within the Closing Datetime periods required by the terms of the Convertible Notes Indentures, the Company shall (a) deliver or cause to be delivered to the trustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem take all of actions required by the Convertible Notes thirty (30) days following Indentures to be performed by the Closing (or, if such day is not Company at or prior to the Effective Time as a Business Day, the first Business Day thereafter) pursuant to Section 6.01 result of the Indenture (execution and delivery of this Agreement or the “Redemption”)consummation of the Transactions, together with including the giving of any certificates, opinions of counsel or other documents notices that may be required in connection with and the delivery of the Redemption Notice to the Trusteetrustee, and (b) take such actions noteholders or other applicable Persons, as applicable, of any documents or instruments required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent delivered at or Merger Sub shall provide funds prior to the Company in an amount sufficient Effective Time to paysuch trustee, noteholders or otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemptionapplicable Persons. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any noticesshall, publications, certificates, opinions of counsel and other communications required to be delivered, and timely take any other actions required to be taken, by the Indenture, in respect of the Offer, the Merger and the other transactions contemplated hereby. The Company shall not cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to occur at Parent’s request prior to the Effective Time, provide all notices and take all other actions to comply with all of the terms and conditions of the Convertible Notes Indentures. The Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on all such notices (including the Redemption Notice), publications and other communications to holders of the Convertible Notes or the Trustee, prior to their delivery or publication, and the Company shall give reasonable and good faith consideration to any comments made by Parent and Merger Sub. The Company shall provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with its legal counsel (i) copies of any notices or other communications, whether written or oral, that the Company or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and from the trustees or holders of notes under the Convertible Notes Indentures, (ii) a prompt updates on any Convertible Notes surrendered for conversion or repurchased by the Company prior to the Effective Time, and (iii) with reasonable opportunity (and in any event at least two (2) business days to participate the extent reasonably practicable) to review and comment on any notices, documents or instruments prior to such notices, documents or instruments being provided to the trustee, noteholders or other applicable Persons, and Parent shall cooperate with the Company with respect to any such notices, documents or its counsel in any material discussions instruments that are required to be executed or meetings with any holder of the Convertible Notes delivered on or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall use commercially reasonable efforts to coordinate discussions among the Company, Parent and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of after the Effective Time; provided, that any notices or actions that are not required by the terms of the applicable Convertible Notes Indenture and any time periods for conversion or repurchase that are determined by the Company pursuant to the applicable Convertible Notes Indenture, respectively, shall be subject to the prior approval of Parent (such approval not to be unreasonably withheld, conditioned or delayed).
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