Failing Investors Clause Samples

Failing Investors. With respect to any Failing Investor, Parent and Merger Sub, acting on the instruction by the Determining Investor (who has the right but not the obligation to give such instruction), shall terminate such Failing Investor’s participation in the Transactions (which shall not constitute a termination of the Failing Investor’s Equity Commitment Letter, the Limited Guarantee or the Support Agreement for purposes thereof) by assigning the Failing Investor’s participation rights to another Investor and/or one or more third parties, in each such case, subject to the same priority allocations as set forth in Section 2.4 with respect to reallocating the participation rights of Non-Consenting Investors which shall apply mutatis mutandis, subject to the consent of such assignee, and, in connection with the completion of such assignment, the Failing Investor and the other Investors shall cooperate in such reasonable arrangements to permit Parent, Merger Sub and the other Investors to proceed with the Transactions and to terminate any liability or obligation of the Failing Investor under this Agreement (other than as specifically set forth in Sections 2.7, 2.13, 2.14, 4.8, 4.14 and 4.17, and with respect to breaches of this Agreement by the Failing Investor prior to the date of the completion of such arrangements); provided, that any assignee of the Failing Investor’s participation rights pursuant to this sentence shall assume (in a written agreement with the Failing Investor that is reasonably acceptable to Parent and the Determining Investor) the Failing Investor’s obligations under the Support Agreement, the Limited Guarantee, the Equity Commitment Letter, and this Agreement, as applicable. Upon the relevant assignee assuming the Failing Investor’s obligations under the Support Agreement, the Limited Guarantee, the Equity Commitment Letter, and this Agreement, as applicable, pursuant to the preceding sentence, and with the prior written consent of the Determining Investor and (to the extent necessary) the Company, all of the Failing Investor’s liabilities and obligations under the Support Agreement, the Limited Guarantee, the Equity Commitment Letter, and this Agreement, as applicable, (other than as specifically set forth in Sections 2.7, 2.13, 2.14, 4.8, 4.14 and 4.17, and with respect to breaches of this Agreement by the Failing Investor prior to the date of the effectiveness of such termination) shall be terminated in accordance with their respective provisions,...
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Failing Investors. Subject to Section 2.2 above, in the event that (a) the Majority Holder determines that the Closing Conditions are satisfied or validly waived or (b) an award of specific performance to fund the Commitments of any Initial or Joining Investor or to transfer and contribute the Rollover Commitment by the Rollover Investor is granted under Section 8.5 of the Merger Agreement as contemplated by Section 2.5.1 hereof, the Majority Holder may, among other things, terminate, pursuant to Section 5.3, the participation in the transaction of (i) any Initial or Joining Investor that does not fund its Commitment or that asserts its unwillingness to fund its Commitment, in each case, as required by its Closing Equity Commitment Letter and (ii) the Rollover Investor if it does not transfer or contribute its Rollover Commitment or if it asserts its unwillingness to transfer or contribute its Rollover Commitment, in each case, as required by its Rollover Agreement; provided that such termination shall not affect the other Investors’ or Parent’s rights against such Failing Investor (as defined herein) with respect to such failure to fund or such Failing Investor’s continuing obligations hereunder as set forth in (x) Sections 2.5, 2.9 and 5 (other than Section 5.10) hereof and (y) such Failing Investor’s Equity Commitment Letters.
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Failing Investors. If either Investor fails to fund its Commitment when required under the applicable Equity Commitment Letter or asserts in writing its unwillingness to do so, and as a result of such actions taken (or failed to be taken) by such Investors (such Investors, the “Failing Investors” and the Investors who are not Failing Investors, the “Non-Failing Investors”) all or any portion of any damages award or settlement payment, expense reimbursement or other payment is required by Parent, Merger Sub, any other Investor or any of their respective Affiliates (including as a result of any obligation by Parent, Merger Sub or any Investor to make such a payment under the Merger Agreement or pursuant to any Limited Guaranty) (such payments, collectively, the “Reverse Termination Payments”), the Reverse Termination Payment (along with any other losses and any other reasonable and documented expenses (excluding, for the avoidance of doubt, any success or contingency fees) incurred by Parent, Merger Sub, the other Investors or any of their respective Affiliates) shall be paid 100% by such Failing Investors on a pro rata basis. For the avoidance of doubt, if SCP determines, in good faith and following reasonable consultation with BCI, that the closing conditions under the Merger Agreement have not been satisfied or that Parent and Merger Sub will not consummate the transactions contemplated by the Merger Agreement, the Investors shall remain fully responsible under their respective Equity Commitment Letters and Limited Guaranties in accordance with the terms thereof.
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Related to Failing Investors

  • SELLING STOCKHOLDERS The shares of Common Stock being offered by the selling stockholders are issuable upon conversion of the convertible debentures and upon exercise of the warrants. For additional information regarding the issuance of those convertible notes and warrants, see “Private Placement of Convertible Debentures and Warrants” above. We are registering the shares of Common Stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except as otherwise notes and except for the ownership of the convertible Debentures and the warrants issued pursuant to the Securities Purchase Agreement, the selling stockholders have not had any material relationship with us within the past three years. The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of Common Stock by each of the selling stockholders. The second column lists the number of shares of Common Stock beneficially owned by each selling stockholder, based on its ownership of the convertible debentures and warrants, as of , 200 , assuming conversion of all convertible debentures and exercise of the warrants held by the selling stockholders on that date, without regard to any limitations on conversions or exercise. The third column lists the shares of Common Stock being offered by this prospectus by the selling stockholders. In accordance with the terms of a registration rights agreement with the selling stockholders, this prospectus generally covers the resale of at least (i) 300% of the number of Conversion Shares issued and issuable pursuant to the convertible debentures as of the trading day immediately preceding the date the registration statement is initially filed with the SEC, and (ii) 100% of the number of warrant shares issued and issuable pursuant to the warrants as of the trading day immediately preceding the date the registration statement is initially filed with the SEC. Because the conversion price of the convertible debentures and the exercise price of the warrants may be adjusted, the number of shares that will actually be issued may be more or less than the number of shares being offered by this prospectus. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus. Under the terms of the convertible debentures and the warrants, a selling stockholder may not convert the convertible debentures or exercise the warrants to the extent such conversion or exercise would cause such selling stockholder, together with its affiliates, to beneficially own a number of shares of Common Stock which would exceed 4.99% of our then outstanding shares of Common Stock following such conversion or exercise, excluding for purposes of such determination shares of Common Stock issuable upon conversion of the convertible debentures which have not been converted and upon exercise of the warrants which have not been exercised. The number of shares in the second column does not reflect this limitation. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”

  • Additional Investors Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Company’s Preferred Stock after the date hereof, any purchaser of such shares of Preferred Stock may become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent by the Investors shall be required for such joinder to this Agreement by such additional Investor, so long as such additional Investor has agreed in writing to be bound by all of the obligations as an “Investor” hereunder.

  • Expenses of the Selling Stockholders The Selling Stockholders, jointly and severally, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement, including (i) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriters and their transfer between the Underwriters pursuant to an agreement between such Underwriters, and (ii) the fees and disbursements of their respective counsel and other advisors.

  • Shares of Dissenting Stockholders Anything in this Agreement to the contrary notwithstanding, shares of Company Common Stock issued and outstanding immediately prior to the Effective Time and held by a holder of record who did not vote in favor of the adoption of this Agreement (or consent thereto in writing) and is entitled to demand and properly demands appraisal of such shares of Company Common Stock pursuant to, and who complies in all respects with, Section 262 of the DGCL (“DGCL 262” and any such shares meeting the requirement of this sentence, “Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration, but instead at the Effective Time shall be converted into the right to receive payment of such amounts as are payable in accordance with DGCL 262 (it being understood and acknowledged that at the Effective Time, such Dissenting Shares shall no longer be outstanding, shall automatically be cancelled and shall cease to exist, and such holder shall cease to have any rights with respect thereto other than the right to receive the fair value of such Dissenting Shares to the extent afforded by DGCL 262); provided that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to payment of the fair value of such Dissenting Shares under DGCL 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares shall cease and such Dissenting Shares shall be deemed to have been converted as of the Effective Time into, and to have become exchangeable solely for the right to receive, without interest or duplication, the Merger Consideration. The Company shall give prompt written notice to Parent of any demands received by the Company for fair value of any shares of Company Common Stock pursuant to DGCL 262 and of any withdrawals of such demands, and Parent shall have the opportunity to participate in all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent, make any payment with respect to, or settle or compromise or offer to settle or compromise, any such demand, or agree to do any of the foregoing.

  • Additional Stockholders In connection with the issuance of any additional equity securities of the Company to any Person, the Company may permit such Person to become a party to this Agreement and succeed to all of the rights and obligations of a "Stockholder" under this Agreement by obtaining the consent of the holders of a majority of the Common Stockholder Shares and an executed counterpart signature page to this Agreement, and, upon such execution, such Person shall for all purposes be a "Stockholder" party to this Agreement.