Merger Transaction. (a) If the Company proposes, prior to the Expiration Date, to enter into a transaction that would constitute a Merger Transaction if closed, the Company shall give written notice thereof to the Holders of Warrants, promptly after an agreement or agreement in principle is reached with respect to the Merger Transaction but in no event less than 15 days prior to the closing thereof. Such notice shall describe the transaction in reasonable detail, specify whether the consideration to be received by the Holders consists of cash or items other than cash, specify whether the Holders must tender the Exercise Price prior to the closing of the transaction pursuant to Section 4.3(c) and specify the date by which such Exercise Price must be tendered. The Company shall also furnish to each Holder of Warrants all notices and materials furnished to its stockholders in connection with such transaction. (b) The Company agrees that it will not enter into an agreement providing for a Merger Transaction in which only cash is paid to the holders of Common Stock, unless the party to such transaction that is the surviving entity (the Survivor) shall be obligated to purchase each outstanding Warrant for a cash purchase price equal to (i) the cash amount the Holder of such Warrant would have received if such Holder had exercised such Warrant immediately prior to such Merger Transaction (or, if applicable, the record date therefor) and the Survivor had purchased the number of shares of Registrable Common Stock then issuable upon such exercise in such Merger Transaction, less (ii) the Exercise Price for such Warrant then in effect. (c) The Company agrees that it will not enter into an agreement providing for a Merger Transaction in which all or a portion of the consideration paid to the holders of Common Stock is not cash, unless the Survivor shall be obligated to distribute or pay to each Holder of Warrants the number of shares of stock or other securities or other property (including any money) of the Survivor that would have been distributable or payable on account of the Registrable Common Stock if such Holder’s Warrants had been exercised immediately prior to such Merger Transaction (or, if applicable, the record date therefor); provided, however, that the Survivor shall have no obligations under this Section 4.3(c) to distribute or pay any such consideration to any Holder who has not exercised its Warrants within 30 days after delivery of the Company’s notice pursuant to Section 4.3(a). Each Holder of Warrants may, but shall not be obligated to, exercise its Warrants in order to participate in any such Merger Transaction. In connection with any such exercise, such Holder shall pay in full the Exercise Price then in effect for the share of Registrable Common Stock as to which a Warrant is submitted for exercise and otherwise comply with the provisions of Section 3.5. (d) Any Warrants that are not exercised in connection with any such Merger Transaction shall terminate and become void as of the closing date of any such Merger Transaction or, in the case of a Merger Transaction described in Section 4.3(c), 30 days after the closing date of such Merger Transaction. (e) In the event of a Merger Transaction in which all or a portion of the consideration to be received by Holders of Warrants consists of securities, the Survivor shall obtain the written opinion of independent counsel as to whether such securities may be resold by such Holders immediately after the closing of the Merger Transaction without registration of such securities under Section 5 of the Securities Act. In the event such counsel shall be of the opinion that such registration is required, the Company agrees that it will not enter into an agreement providing for such Merger Transaction, unless the Survivor shall have provided such Holders the same Registration Rights with respect to such securities that they would have been entitled to had the Merger Transaction not occurred.
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Merger Transaction. (a) If the Company proposes, prior to the ------------------ Expiration Date, to enter into a transaction that would constitute a Merger Transaction if closedconsummated, the Company shall give written notice thereof to the Holders of Warrants, promptly after an agreement or agreement in principle is reached with respect to the Merger Transaction but in no event less than 15 30 days prior to the closing thereof. Such notice shall describe the transaction in reasonable detail, detail and specify whether the consideration to be received by the Holders consists of cash or items other than cash, specify whether the Holders must tender the Exercise Price prior to the closing of the transaction pursuant to Section 4.3(c) and specify the date by which such Exercise Price must be tendered. The Company shall also furnish to each Holder of Warrants all notices and materials furnished to its stockholders in connection with such transaction.
(b) The Company agrees that it will not enter into an agreement providing for a Merger Transaction in which only cash is paid to the holders of Common Stock, unless the party to such transaction that is the surviving entity (the "Survivor") shall be obligated to purchase each outstanding Warrant for a cash purchase price equal to (i) the cash amount the Holder of such Warrant would have received if such Holder had exercised such Warrant immediately prior to such Merger Transaction (or, if applicable, the record date therefor) and the Survivor had purchased the number of shares of Registrable Common Stock Warrant Shares then issuable upon such exercise in such Merger Transaction, less (ii) the Exercise Price for such Warrant then in effect.
(c) The Company agrees that it will not enter into an agreement providing for a Merger Transaction in which all or a portion of the consideration paid to the holders of Common Stock is not cash, unless the Survivor shall be obligated to distribute or pay to each Holder of Warrants the number of shares of stock or other securities or other property (including any money) of the Survivor that would have been distributable or payable on account of the Registrable Common Stock Warrant Shares if such Holder’s 's Warrants had been exercised immediately prior to such Merger Transaction (or, if applicable, the record date therefor); provided, however, that the Survivor shall have no obligations under this Section 4.3(c) to distribute or pay any such consideration to any Holder who has not exercised its Warrants within 30 days after delivery of the Company’s notice pursuant to Section 4.3(a). Each Holder of Warrants may, but shall not be obligated to, exercise its Warrants in order to participate in any such Merger Transaction. In connection with any such exercise, such Holder shall pay in full the Exercise Price then in effect for the share of Registrable Common Stock as to which a Warrant is submitted for exercise and otherwise comply with the provisions of Section 3.5.
(d) Any The Warrants that are not exercised in connection with any such Merger Transaction shall terminate and become void as of the closing date of any such Merger Transaction or, in the case of a Merger Transaction described in Section 4.3(c), 30 days after the closing date of such Merger Transaction.
(e) In the event of a Merger Transaction in which all or a portion of the consideration to be received by Holders of Warrants consists of securities, the Survivor shall obtain the written opinion of independent counsel as to whether such securities may be resold by such Holders immediately after the closing of the Merger Transaction without registration of such securities under Section 5 of the Securities Act. In the event such counsel shall be of the opinion that such registration is required, the Company agrees that it will not enter into an agreement providing for such Merger Transaction, unless the Survivor shall have provided such Holders the same Registration Rights with respect to such securities that they would have been entitled to had the Merger Transaction not occurred.
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Merger Transaction. (a) If the Company proposes, prior to the Expiration Date, to enter into a transaction that would constitute a Merger Transaction if closed, the Company 18.7.1 Ultimate Holdings shall give written notice thereof to the Holders of Warrants, promptly after an agreement or agreement in principle is reached with respect to the Merger Transaction but in no event less than 15 days prior to the closing thereof. Such notice shall describe the transaction in reasonable detail, specify whether the consideration to be received by the Holders consists of cash or items other than cash, specify whether the Holders must tender the Exercise Price prior to the closing of the transaction pursuant to Section 4.3(c) and specify the date by which such Exercise Price must be tendered. The Company shall also furnish to each Holder of Warrants all notices and materials furnished to its stockholders in connection with such transaction.
(b) The Company agrees that it will not enter into an agreement providing for a any Merger Transaction in which only cash is paid to the holders of Common Stock, unless the party to such transaction that is the surviving entity (the Survivor) shall be obligated to purchase each outstanding Warrant for a cash purchase price equal to (i) the cash amount the Holder of such Warrant would have received if such Holder had exercised such Warrant immediately prior Successor Issuer to such Merger Transaction (or, if applicable, not Ultimate Holdings) expressly assumes the record date thereforobligations of Ultimate Holdings under this Article XVIII or (ii) and the Survivor had purchased the number of shares of Registrable Common Stock then issuable upon such all Lenders exercise in their Merger Conversion Right prior to entry into such Merger Transaction, less (ii) the Exercise Price for such Warrant then in effect.
(c) The Company agrees that it will not enter into an agreement providing for a Merger Transaction in which all or a portion of the consideration paid to the holders of Common Stock is not cash, unless the Survivor shall be obligated to distribute or pay to each Holder of Warrants the number of shares of stock or other securities or other property (including any money) of the Survivor that would have been distributable or payable on account of the Registrable Common Stock if such Holder’s Warrants had been exercised immediately prior to such Merger Transaction (or, if applicable, the record date therefor); provided, however, that the Survivor nothing in this Section 18.7 shall have no obligations be construed to permit any event or transaction otherwise prohibited under this Section 4.3(cAgreement. Ultimate Holdings shall deliver to the Lenders a written notice of any Merger Transaction (“Merger Transaction Notice”) prior to, or as promptly as practicable following, the execution of a definitive agreement relating to distribute or pay any such consideration to any Holder who has not exercised its Warrants within 30 days after delivery Merger Transaction (but in no event later than the 10th Business Day immediately preceding the effective date of the Company’s notice pursuant to Section 4.3(a). Each Holder consummation of Warrants may, but shall not be obligated to, exercise its Warrants in order to participate in any such Merger Transaction. In connection ) and shall promptly provide the Lenders with such information regarding the terms and timing of such Merger Transaction as the Lenders may reasonably request (including, if the Successor Issuer in such Merger Transaction is not a Public Issuer, copies of the material transaction documents relating to the Merger Transaction and due diligence materials reasonably requested by any such exerciseLender relating to the identity of the Successor Issuer, such Holder shall pay in full the Exercise Price then in effect for the share of Registrable Common Stock as consideration to which a Warrant is submitted for exercise and otherwise comply with the provisions of Section 3.5.
(d) Any Warrants that are not exercised be paid in connection with any such Merger Transaction and, subject to any restrictions on Ultimate Holdings pursuant to any applicable confidentiality agreement, any other materials any Lender determines in good faith would be reasonably necessary in connection with its potential Conversion Right Election). The definitive agreement with respect to any Merger Transaction shall terminate and become void include such additional provisions as are reasonably necessary to protect the Conversion Rights of the closing date of Lenders under this Article XVIII.
18.7.2 If the Successor Issuer following a Merger Transaction is a Public Issuer, such Successor Issuer shall grant to each Lender registration rights (to be effective upon such Lender becoming a Converting Lender) that are no less favorable to such Lender than any registration rights granted to any other Person in connection with such Merger Transaction; provided that in no event shall such registration rights be less favorable to any Lender than the registration rights set forth in any Registration Rights Agreement then in effect. If the Successor Issuer following a Merger Transaction is not a Public Issuer, such Successor Issuer shall grant each Lender registration rights (to be effective upon such Lender becoming a Converting Lender) that are no less favorable to such Lender than any registration rights granted in connection with such Merger Transaction orto any other holder of the Shares; provided that in no event shall such registration rights be less favorable to any Lender than the registration rights set forth in any Registration Rights Agreement then in effect. Following the consummation of any Merger Transaction in which Ultimate Holdings is not the Successor Issuer, all references in this Article XVIII to Ultimate Holdings shall be deemed replaced with references to the Successor Issuer.
18.7.3 If, in the case of connection with a Merger Transaction described in Section 4.3(cTransaction, the Shares are converted into, or exchanged for, consideration not including any Successor Securities (“Other Consideration”), 30 days then, notwithstanding anything in this Article XVIII to the contrary, from and after the closing date consummation of the Merger Transaction, the Outstanding Obligations will be convertible (whenever otherwise convertible under Section 18.2, Section 18.3 or Section 18.4) into the amount and type of Other Consideration that the Conversion Payment Shares would have been converted into, or exchanged for, had the Conversion occurred immediately prior to the consummation of the Merger Transaction. If the Shares are converted into, or exchanged for, more than a single type of Other Consideration determined based in part upon any form of election by holders of the Shares, the Other Consideration that the Outstanding Obligations will be convertible into will be deemed to be the weighted average of the types and amounts of Other Consideration actually received per Share in such Merger Transaction.
(e) In the event of 18.7.4 If, in connection with a Merger Transaction in which all Transaction, the Shares are converted into, or exchanged for, a combination of Successor Securities and Other Consideration, (i) Section 18.7.3 shall apply to only the portion of the consideration Outstanding Obligations equal to be received by Holders of Warrants consists of securities, the Survivor shall obtain the written opinion of independent counsel as to whether such securities may be resold by such Holders immediately after the closing fraction of the Merger Transaction without registration of such securities under Section 5 of the Securities Act. In the event such counsel shall be of the opinion that such registration is required, the Company agrees that it will not enter into an agreement providing for such Merger Transaction, unless the Survivor shall have provided such Holders the same Registration Rights aggregate consideration with respect to such securities that they would have been entitled to had the Merger Transaction composed of Other Consideration, as determined by the Lenders and Ultimate Holdings in good faith and in a commercially reasonable manner in accordance with Section 18.10 based on the value of the aggregate consideration as of the effective date of such Merger Transaction and (ii) the portion of the Outstanding Obligations not occurredcovered by clause (i) of this Section 18.7.4 shall become convertible into Successor Securities pursuant to the definition of “Shares”.
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