Redemption Events. In case one or more of the following events, each a redemption event, shall have occurred: (a) If the Corporation fails to have a registration statement effective within one hundred fifty (150) days of the date of the Stock Purchase Agreement, at the option of the Purchaser; or (b) failure to deliver the shares of Common Stock required to be delivered upon conversion of the shares of Series A Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase Agreement; or (c) failure of the Corporation to have authorized the number of shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock or exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or (d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or (e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or (f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or (g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or (h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or (i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or (j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Common Stock of the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) of the shares of Series A Preferred Stock then outstanding, by notice in writing to the Corporation (the date of such notice the "Redemption Notice Date"), may demand that the Corporation redeem, and the Corporation shall redeem, each share of Series A Preferred Stock then outstanding at a price per share equal to one hundred twenty-five percent (125%) of the sum of (x) the Stated Value and (y) the aggregate accrued and unpaid dividends on such Redemption Notice Date
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cybertel Communications Corp), Securities Purchase Agreement (Cybertel Communications Corp)
Redemption Events. In case one The following are "Redemption Events" under ----------------- ----------------- this Section 6(f): (A) any Change of Control or more (B) any suspension from listing or delisting of the following eventsCommon Stock from the Nasdaq or any Subsequent Market on which the Common Stock is listed for a period of five consecutive days. On and after the date of any Redemption Event, each a redemption event, the Registered Owner shall have occurred:
the option to require the Company to redeem (a) If the Corporation fails to have "Redemption Right"), for a registration statement effective within one hundred fifty period ---------------- of thirty (15030) days after the Registered Owner receives notice of Redemption Event, in cash within 10 days of the Redemption Event, the Registered Owner's shares of Common Stock immediately theretofore acquirable and receivable upon the exercise of such Registered Owner's Warrant at a price per share equal to the product of (i) the amount by which, if any, the Average Price immediately preceding the latest of the effective date, the date of the Stock Purchase Agreementclosing, at date of occurrence or the option date of the Purchaser; or
(b) failure to deliver announcement, as the shares of Common Stock required to be delivered upon conversion case may be, of the shares of Series A Preferred Stock in Redemption Event triggering such Redemption Right exceeds the manner Exercise Price and at the time required by Section 5 of the Securities Purchase Agreement; or
(cii) failure of the Corporation to have authorized the number of shares of Common Stock issuable upon conversion exercise of the Warrant immediately prior to such Redemption Event. After the occurrence of (A), the Registered Owner shall have the right at his or its option, in lieu of the Redemption Right, to exercise the Warrant for shares of stock and other securities, cash and property receivable upon or deemed to be held by holders of Common Stock following such Redemption Event; the Registered Owner shall be entitled upon such event to receive such amount of securities, cash or property as if the Registered Owner had exercised the Warrant of the shares of Series A Preferred the Common Stock or issuable upon exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or immediately prior to such Change Redemption Event (without taking into account any limitations or restrictions on the exercise of the Warrant). In the case of a transaction specified in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Company's Common Stock of the Corporation shall have become entitled to receive cash, securities the Registered Owner shall have the right at his or its option, in lieu of the Corporation other than voting common stock or securities Redemption Right, to exercise the Warrant for such number of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority shares of the members surviving company equal to the amount of cash into which the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election Warrant is exercisable divided by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) fair market value of the shares of Series A Preferred Stock then outstandingthe surviving company on the effective date of the merger. In the case of (A), the Company shall not effect any such Redemption Event unless, prior to the consummation thereof, each Person (other than the Company) which may be required to deliver any stock, securities, cash or property upon the exercise of the Warrant as provided herein shall assume, by notice written instrument delivered and reasonably satisfactory to, the Registered Owner, (a) the obligations of the Company under the Warrant (and if the Company shall survive the consummation of such transaction, such assumption shall be in writing addition to, and shall not release the Company from, any continuing obligations of the Company under this Warrant), (b) the obligations of the Company under the Purchase Agreement, the Warrant and the Registration Rights Agreement, and (c) the obligation to deliver to the Corporation (Registered Owner such shares of stock, securities, cash or property as, in accordance with the date foregoing provisions of such notice the "Redemption Notice Date"this Section 6(f), the Registered Owner may demand that be entitled to receive. Nothing in this Section 6(f) shall be deemed to authorize the Corporation redeem, and Company to enter into any transaction not otherwise permitted by the Corporation Purchase Agreement. This provision shall redeem, each share of Series A Preferred Stock then outstanding at a price per share equal similarly apply to one hundred twenty-five percent (125%) of the sum of (x) the Stated Value and (y) the aggregate accrued and unpaid dividends on such successive Redemption Notice DateEvents.
Appears in 2 contracts
Sources: Warrant Agreement (Satcon Technology Corp), Stock Purchase Warrant (Satcon Technology Corp)
Redemption Events. In case one or more of the following events, each a redemption event, shall have occurred:
(ai) If the The Corporation fails to have a registration statement effective within one hundred fifty (150) days of the date of the Stock Purchase Agreementmay, at the option of the Purchaser; or
(b) failure any time and from time to deliver the shares of Common Stock required to be delivered upon conversion time, redeem all or any portion of the shares of Series A B Preferred Stock then outstanding at the Optional Redemption Price per share; provided, that any such redemption shall be on a pro rata basis among the holders of Series B Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase Agreement; or
(c) failure of the Corporation to have authorized accordance with the number of shares of Common Series B Preferred Stock issuable upon conversion of then held by such holders.
(ii) On February 15, 2025, the Corporation shall redeem all shares of Series A Preferred Stock or exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Common Stock of the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) of the shares of Series A Preferred Stock then outstanding, by notice in writing to the Corporation (the date of such notice the "Redemption Notice Date"), may demand that the Corporation redeem, and the Corporation shall redeem, each share of Series A B Preferred Stock then outstanding at a the Mandatory Redemption price per share equal share.
(iii) Concurrently with and as a condition to one hundred twenty-five percent (125%) the consummation of a Change of Control, subject to the prior repayment in full of the sum obligations under the Credit Agreement as required pursuant to the terms thereof, the Corporation shall repurchase all Series B Preferred Stock then outstanding at the Optional Redemption Price per share.
(iv) In the event of a Qualifying Equity Sale, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Qualifying Equity Sale), use all of the Net Cash Proceeds from such Qualifying Equity Sale to redeem the maximum number of shares of Series B Preferred Stock that are redeemable from such Net Cash Proceeds from such Qualifying Equity Sale at the Optional Redemption Price per share; provided that any such redemption shall be on a pro rata basis among the holders of Series B Preferred Stock in accordance with the number of shares of Series B Preferred Stock then held by such holders; provided, further, that the Corporation shall not be required to effect any redemption pursuant to this clause (iv) unless such redemption is not prohibited by the Credit Agreement (or any credit facility that refinances or replaces the Credit Agreement so long as any such credit facility that refinances or replaces the Credit Agreement or any amendment of the Credit Agreement after the date hereof is not more restrictive than the Credit Agreement as in effect on the date hereof with respect to such redemptions).
(v) In the event of a Significant Disposition, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Significant Disposition), use all of the Net Cash Proceeds from such Significant Disposition to redeem the maximum number of shares of Series B Preferred Stock that are redeemable from such Net Cash Proceeds from such Significant Disposition at the Optional Redemption Price per share; provided that (x) any such redemption shall be on a pro rata basis among the Stated Value holders of Series B Preferred Stock in accordance with the number of shares of Series B Preferred Stock then held by such holders and (y) if any portion of the aggregate accrued consideration from such Significant Disposition is not in the form of cash consideration, then for purposes of this clause (iv) any such non-cash consideration shall be included in the calculation of Net Cash Proceeds as and unpaid dividends when converted to cash; provided, further, that the Corporation shall not be required to effect any redemption pursuant to this clause (v) unless such redemption is not prohibited by the Credit Agreement (or any credit facility that refinances or replaces the Credit Agreement so long as any such credit facility that refinances or replaces the Credit Agreement or any amendment of the Credit Agreement after the date hereof is not more restrictive than the Credit Agreement as in effect on the date hereof with respect to such Redemption Notice Dateredemptions).
Appears in 2 contracts
Sources: Equity Commitment Agreement (Infrastructure & Energy Alternatives, Inc.), Equity Commitment Agreement (Infrastructure & Energy Alternatives, Inc.)
Redemption Events. In case one or more of the following events, each a redemption event, shall have occurred:
(a) If the Corporation fails to have a registration statement effective within one hundred fifty (150) days of the date of the Stock Purchase Agreement, at the option of the Purchaser; or
(b) failure to deliver the shares of Common Stock required to be delivered upon conversion of the shares of Series A Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase Agreement; or
(c) failure of the Corporation to have authorized the number of shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock or exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment whichThe Corporation may, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Common Stock of the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever and from time to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of time, redeem all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) any portion of the shares of Series A Preferred Stock then outstanding; provided, by notice that any such redemption shall be on a pro rata basis among the holders of Series A Preferred Stock in writing to accordance with the Corporation (the date number of such notice the "Redemption Notice Date"), may demand that the Corporation redeem, and the Corporation shall redeem, each share shares of Series A Preferred Stock then outstanding at held by such holders.
(ii) Concurrently with and as a price per share equal condition to one hundred twenty-five percent the consummation of a Change of Control, the Corporation shall repurchase all Series A Preferred Stock then outstanding.
(125%iii) In the event of a Qualifying Equity Sale, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the sum consummation of such Qualifying Equity Sale), use all of the Net Cash Proceeds from such Qualifying Equity Sale to redeem the maximum number of shares of Series A Preferred Stock that are redeemable from such Net Cash Proceeds from such Qualifying Equity Sale at the Redemption Price (as defined below) per share; provided that any such redemption shall be on a pro rata basis among the holders of Series A Preferred Stock in accordance with the number of shares of Series A Preferred Stock then held by such holders.
(iv) In the event of a Significant Disposition, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Significant Disposition), use all of the Net Cash Proceeds from such Significant Disposition to redeem the maximum number of shares of Series A Preferred Stock that are redeemable from such Net Cash Proceeds from such Significant Disposition at the Redemption Price per share; provided that (x) any such redemption shall be on a pro rata basis among the Stated Value holders of Series A Preferred Stock in accordance with the number of shares of Series A Preferred Stock then held by such holders and (y) if any portion of the aggregate accrued consideration from such Significant Disposition is not in the form of cash consideration, then for purposes of this clause (iv) any such non-cash consideration shall be included in the calculation of Net Cash Proceeds as and unpaid dividends on such Redemption Notice Datewhen converted to cash.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (M III Acquisition Corp.), Agreement and Plan of Merger (M III Acquisition Corp.)
Redemption Events. In case Except as provided in Sections 4(a)(i), 4(a)(ii), 4(a)(iii) and 4(a)(iv) below, the Convertible Preferred Shares may not be redeemed without the consent of the Holder of such shares. Redemption shall be effected upon the occurrence of one or more of the following events, each a redemption event, shall have occurred:
(a) If the Corporation fails to have a registration statement effective within one hundred fifty (150) days of the date of the Stock Purchase Agreement, at the option of the Purchaser; or
(b) failure to deliver the shares of Common Stock required to be delivered upon conversion of the shares of Series A Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase Agreement; or
(c) failure of the Corporation to have authorized the number of shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock or exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If Redemption at the Redemption Date. At the Redemption Date, the Company shall either (i) pay each Holder the Preference Amount (determined as of the Redemption Date) for such Holder, or (ii) deliver to each Holder the Parent Redemption Shares (determined as of the Redemption Date) for such Holder; provided, Company may not elect to deliver the Parent Redemption Shares (and therefore must pay the Preference Amount) unless such Shares are listed on a final judgment whichQualified Exchange and are freely tradable subject only to the rules and regulations of the Qualified Exchange generally applicable to stock actively traded on the Qualified Exchange; provided further, that such Holder may reject any such payment of the Preference Amount or delivery of the Parent Redemption Shares and instead elect to convert its Convertible Preferred Shares into Common Shares pursuant to Section 7 hereof. The Company shall provide five (5) Business Days prior written notice to the Holders of its election pursuant to this Section 4(a)(i) to either alone pay the Preference Amount or together with other outstanding final judgments against to provide the Corporation Parent Redemption Shares, and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment Holders shall have continued undischarged or unstayed for thirty three (303) days after entry thereof; or
(j) If there shall occur a Change in Control of Business Days from the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock date it receives such notice from Company to elect to convert their shares of Series A Preferred Stock on or prior into Common Shares pursuant to such Change in ControlSection 7 hereof. For purposes of clarification, if any Holder elects to convert to Common Shares pursuant to Section 7 hereof, a "Change in Control" the Company shall not have the option of paying the Preference Amount or delivering Parent Redemption Shares. If either: (x) the Company fails to make the election to either pay the Preference Amount or deliver the Parent Redemption Shares by the fifth Business Day prior to the Redemption Date, or (y) the Company elects to deliver Parent Redemption Shares and fails to deliver Parent Redemption Shares within two (2) Business Days after the Redemption Date, then the Company shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D elected to pay the Preference Amount and such payment obligation of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) Company shall have become the beneficial owner or owners of more than 50% be a senior obligation of the outstanding voting stock of Company immediately due and payable in full. If the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation Preference Amount is not the survivor or in which holders of the Common Stock of the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, payable and in each and every such case, so long as such redemption event has not been remediedpaid in full, in addition to all other remedies, interest shall accrue thereon from the holders Redemption Date until paid in full at the rate of not less than fifty-one percent (51%) of 15% per annum, payable immediately and compounded monthly from the shares of Series A Preferred Stock then outstandingRedemption Date until paid in full. If the Parent Redemption Shares or the Common Shares, by notice in writing to as the Corporation (the date of such notice the "Redemption Notice Date")case may be, may demand that the Corporation redeem, are deliverable and the Corporation Company fails to deliver the Parent Redemption Shares or the Common Shares, as the case may be, to each Holder on the Redemption Date, then (in addition to all other remedies) dividends payable on the Convertible Preferred Shares shall redeemcontinue to accrue and shall be payable at the Dividend Default Rate until such Parent Redemption Shares or Common Shares, each share as the case may be, are so delivered and the number of Series A Preferred Stock then outstanding at a price per share equal to one hundred twenty-five percent (125%) of Parent Redemption Shares or Common Shares, as the sum of (x) the Stated Value and (y) the aggregate accrued and unpaid dividends on such Redemption Notice Datecase may be, shall increase accordingly.
Appears in 1 contract
Sources: Share Purchase Agreement (Xinhua Finance Media LTD)
Redemption Events. In case one or more of the following events, each a redemption event, shall have occurred:
(ai) If the The Corporation fails to have a registration statement effective within one hundred fifty (150) days of the date of the Stock Purchase Agreementmay, at the option of the Purchaser; or
(b) failure any time and from time to deliver the shares of Common Stock required to be delivered upon conversion time, redeem all or any portion of the shares of Series A B‑3 Preferred Stock then outstanding at the Optional Redemption Price per share; provided, that any such redemption shall be on a pro rata basis among the holders of Series B‑3 Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase Agreement; or
(c) failure of the Corporation to have authorized accordance with the number of shares of Common Series B‑3 Preferred Stock issuable upon conversion of then held by such holders.
(ii) On February 15, 2025 (the “Mandatory Redemption Date”), the Corporation shall redeem all shares of Series A Preferred Stock or exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Common Stock of the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) of the shares of Series A Preferred Stock then outstanding, by notice in writing to the Corporation (the date of such notice the "Redemption Notice Date"), may demand that the Corporation redeem, and the Corporation shall redeem, each share of Series A B‑3 Preferred Stock then outstanding at the Mandatory Redemption Price per share. There shall be no premium or penalty payable in connection with any such mandatory redemption.
(iii) Concurrently with and as a price per share equal condition to one hundred twenty-five percent (125%) the consummation of a Change of Control, subject to the prior repayment in full of the sum obligations under the Credit Agreement as required pursuant to the terms thereof, the Corporation shall repurchase all Series B‑3 Preferred Stock then outstanding at the Optional Redemption Price per share.
(iv) In the event of a Qualifying Equity Sale, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Qualifying Equity Sale), use all of the Net Cash Proceeds from such Qualifying Equity Sale to redeem the maximum number of shares of Series B‑3 Preferred Stock that are redeemable from such Net Cash Proceeds from such Qualifying Equity Sale at the Optional Redemption Price per share; provided that any such redemption shall be on a pro rata basis among the holders of Series B‑3 Preferred Stock in accordance with the number of shares of Series B‑3 Preferred Stock then held by such holders; provided, further, that the Corporation shall not be required to effect any redemption pursuant to this clause (iv) unless such redemption is not prohibited by the Credit Agreement (or any credit facility that refinances or replaces the Credit Agreement so long as any such credit facility that refinances or replaces the Credit Agreement or any amendment of the Credit Agreement after the date hereof is not more restrictive than the Credit Agreement as in effect on the Closing Date with respect to such redemptions).
(v) In the event of a Significant Disposition, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Significant Disposition), use all of the Net Cash Proceeds from such Significant Disposition to redeem the maximum number of shares of Series B‑3 Preferred Stock that are redeemable from such Net Cash Proceeds from such Significant Disposition at the Optional Redemption Price per share; provided that (x) any such redemption shall be on a pro rata basis among the Stated Value holders of Series B‑3 Preferred Stock in accordance with the number of shares of Series B‑3 Preferred Stock then held by such holders and (y) if any portion of the aggregate accrued consideration from such Significant Disposition is not in the form of cash consideration, then for purposes of this clause (v) any such non-cash consideration shall be included in the calculation of Net Cash Proceeds as and unpaid dividends when converted to cash; provided, further, that the Corporation shall not be required to effect any redemption pursuant to this clause (v) unless such redemption is not prohibited by the Credit Agreement (or any credit facility that refinances or replaces the Credit Agreement so long as any such credit facility that refinances or replaces the Credit Agreement or any amendment of the Credit Agreement after the date hereof is not more restrictive than the Credit Agreement as in effect on the Closing Date with respect to such Redemption Notice Dateredemptions). For the avoidance of doubt, all redemptions under this Section 7(a) shall be subject to compliance with Section 7(h).
Appears in 1 contract
Sources: Equity Commitment Agreement (Infrastructure & Energy Alternatives, Inc.)
Redemption Events. In The Series A Stock of a holder thereof and any Common Stock issued upon the conversion of the Series A Stock (the “Converted Common Stock”) of a holder thereof (a “Converted Common Holder”) is subject to redemption at the written direction of such holder, at a redemption price equal to (i) in the case of Series A Stock, the liquidation preference set forth in subsection 2(a)(i) of this Resolution (which liquidation preference includes any accrued and unpaid dividends on the Series A Stock) and (ii) in the case of Converted Common Stock, at the average reported price of the Common Stock during the four calendar weeks immediately preceding the date notice of redemption is given pursuant to subsection 4(b) of this Resolution , if any one or more of the following events, each a redemption event, events shall have occurred:
(ai) If the Corporation fails to shall not have a registration statement effective within one hundred fifty (150) days of obtained approval for the date of the Stock Purchase Agreement, at the option of the Purchaser; or
(b) failure to deliver the shares of Common Stock required to be delivered upon conversion of the shares of Series A Preferred Stock in the manner listed and at the time required by traded on an exchange that is registered as a “national securities exchange” pursuant to Section 5 of the Securities Purchase Agreement; or
(c) failure of the Corporation to have authorized the number of shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock or exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D 6 of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), on or before December 31, 2008;
(ii) shall have become the beneficial owner or owners of more than 50% If, after having been approved for listing and trading on an exchange that is registered as a “national securities exchange” pursuant to Section 6 of the outstanding voting stock Exchange Act, the Common Stock is thereafter delisted from such exchange, or if trading in the Common Stock on such exchange is otherwise terminated or suspended;
(iii) If, after having been approved for listing and trading on an exchange that is registered as a “national securities exchange” pursuant to Section 6 of the Corporation; (B) there shall have occurred a merger or consolidation Exchange Act, the average weekly reported volume of trading in the Common Stock on such exchange during the preceding four calendar weeks is less than 25 percent of the number of shares of Common Stock into which the Corporation or outstanding Series A Stock is then convertible;
(iv) If, after having been approved for listing and trading on an affiliate exchange that is registered as a “national securities exchange” pursuant to Section 6 of the Corporation is not Exchange Act, the survivor or in which holders average reported price of the Common Stock on such exchange during the preceding four calendar weeks is less than the liquidation preference of the Series A Stock set forth in subsection 2(a)(i) of this Resolution (which liquidation preference includes any accrued and unpaid dividends on the Series A Stock);
(v) If the Corporation shall have become entitled insolvent, make a transfer in fraud to receive cashor an assignment for the benefit of its creditors, securities of or admit in writing its inability to pay its debts as they become due;
(vi) If a receiver, custodian, liquidator or trustee shall be applied for by the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease shall be appointed for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all of the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" or if any such receiver, custodian, liquidator or trustee shall mean the persons constituting the Board of Directors of be appointed in any proceeding brought against the Corporation on the date hereof, together with each new director whose electionand such appointment is not contested or is not dismissed or discharged within 60 days after such appointment, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) of the shares of Series A Preferred Stock then outstanding, by notice in writing to the Corporation (the date of such notice the "Redemption Notice Date"), may demand that the Corporation redeem, and if the Corporation shall redeem, each share of Series A Preferred Stock then outstanding at a price per share equal to one hundred twenty-five percent (125%) of the sum of (x) the Stated Value and (y) the aggregate accrued and unpaid dividends on acquiesce in such Redemption Notice Dateappointment;
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Timberline Resources Corp)
Redemption Events. In case one or more of the following events, events each a redemption event, event shall have occurred:
(a) If the Corporation fails to have a registration statement effective within one hundred fifty eighty (150180) days of the date of the Stock Purchase Agreement, at the option of the Purchaser, the Corporation shall redeem the outstanding shares of Series A Preferred Stock at a redemption price of one hundred twenty-five percent (125%) of the Stated Value per share plus accrued and unpaid dividends thereon, if any; or
(b) failure to deliver the shares of Common Stock required to be delivered upon conversion of the shares of Series A Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase Agreement; or
(c) failure of the Corporation to have authorized the number of shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock or exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Conditional Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Common Stock of the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) of the shares of Series A Preferred Stock then outstanding, by notice in writing to the Corporation (the date of such notice the "Redemption Notice Date"), may demand that the Corporation redeem, and the Corporation shall redeem, each share of Series A Preferred Stock then outstanding at a price per share equal to one hundred twenty-five percent (125%) of the sum of (x) the Stated Value and (y) the aggregate accrued and unpaid dividends on such Redemption Notice Datesuch
Appears in 1 contract
Sources: Securities Purchase Agreement (Intelliquis International Inc)
Redemption Events. In case one The following are "Redemption Events" under ----------------- ----------------- this Section 7(f): (A) any Change of Control or more (B) any suspension from listing or delisting of the following eventsCommon Stock from the Nasdaq or any Subsequent Market on which the Common Stock is listed for a period of five consecutive days. On and after the date of any Redemption Event, each a redemption event, the Registered Owner shall have occurred:
the option to require the Company to redeem (a) If the Corporation fails to have "Redemption ---------- Right"), for a registration statement effective within one hundred fifty period of thirty (15030) days after the Registered Owner ----- receives notice of Redemption Event, in cash and subject to the terms of payment provisions set forth in Section 8, the Registered Owner's shares of Common Stock immediately theretofore acquirable and receivable upon the exercise of such Registered Owner's Warrant at a price per share equal to the product of (i) the amount by which, if any, the Average Price immediately preceding the latest of the effective date, the date of the Stock Purchase Agreementclosing, at date of occurrence or the option date of the Purchaser; or
(b) failure to deliver announcement, as the shares of Common Stock required to be delivered upon conversion case may be, of the shares of Series A Preferred Stock in Redemption Event triggering such Redemption Right exceeds the manner Exercise Price and at the time required by Section 5 of the Securities Purchase Agreement; or
(cii) failure of the Corporation to have authorized the number of shares of Common Stock issuable upon conversion exercise of the Warrant immediately prior to such Redemption Event. After the occurrence of (A), the Registered Owner shall have the right at his or its option, in lieu of the Redemption Right, to exercise the Warrant for shares of stock and other securities, cash and property receivable upon or deemed to be held by holders of Common Stock following such Redemption Event; the Registered Owner shall be entitled upon such event to receive such amount of securities, cash or property as if the Registered Owner had exercised the Warrant of the shares of Series A Preferred the Common Stock or issuable upon exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or immediately prior to such Change Redemption Event (without taking into account any limitations or restrictions on the exercise of the Warrant). In the case of a transaction specified in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Company's Common Stock of the Corporation shall have become entitled to receive cash, securities the Registered Owner shall have the right at his or its option, in lieu of the Corporation other than voting common stock or securities Redemption Right, to exercise the Warrant for such number of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority shares of the members surviving company equal to the amount of cash into which the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election Warrant is exercisable divided by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) fair market value of the shares of Series A Preferred Stock then outstandingthe surviving company on the effective date of the merger. In the case of (A), the Company shall not effect any such Redemption Event unless, prior to the consummation thereof, each Person (other than the Company) which may be required to deliver any stock, securities, cash or property upon the exercise of the Warrant as provided herein shall assume, by notice in writing to written instrument delivered and reasonably satisfactory to, the Corporation Registered Owner, (a) the date obligations of the Company under the Warrant (and if the Company shall survive the consummation of such notice transaction, such assumption shall be in addition to, and shall not release the "Redemption Notice Date"Company from, any continuing obligations of the Company under this Warrant), may demand that (b) the Corporation redeemobligations of the Company under the Purchase Agreement, the Warrant, the Certificate of Designation, and the Corporation shall redeemRegistration Rights Agreement, each share of Series A Preferred Stock then outstanding at a price per share equal to one hundred twenty-five percent and (125%) of the sum of (xc) the Stated Value and (yobligation to deliver to the Registered Owner such shares of stock, securities, cash or property as, in accordance with the foregoing provisions of this Section 7(f), the Registered Owner may be entitled to receive. Nothing in this Section 7(f) shall be deemed to authorize the aggregate accrued and unpaid dividends on such Company to enter into any transaction not otherwise permitted by the Purchase Agreement. This provision shall similarly apply to successive Redemption Notice DateEvents.
Appears in 1 contract
Redemption Events. In case one (i) Notwithstanding anything contained in Section 5(a), (b) or more (c) to the contrary, if at any time there shall occur a Redemption Event, then on the date that is thirty (30) Business Days after the date of such Redemption Event (or, if such day is not a Business Day, then the next Business Day thereafter) (the “ REDEMPTION EVENT DATE”), the Corporation shall either, as it may elect,
(1) redeem from each holder of Series A-X Preferred Stock, at a cash redemption price equal to the Redemption Price, as many of the following eventsMaximum Number of Redemption Event Shares as the holder may specify in a Redemption Event Notice (for each holder, such number of shares, the “DESIGNATED NUMBER OF REDEMPTION EVENT SHARES”), or
(2) exercise its rights pursuant to, and subject to all of the terms and provisions of, Section 6(a)(ii) to require the holder of the Series A-X Preferred Stock to convert the Designated Number of Redemption Event Shares; provided, however, that if and to the extent, as of the Redemption Event Date, the Corporation is prevented by the terms of Section 6(a)(ii)(B) from requiring the holder to convert shares of Series A-X Preferred Stock pursuant to Section 6(a)(ii)(A), then the Corporation shall, notwithstanding any election that it may otherwise have made pursuant to this Section 5(d)(i), redeem from each holder on the Redemption Event Date in accordance with clause (1) above such of the Designated Number of Redemption Event Shares as the Corporation is prevented by the terms of Section 6(a)(ii)(B) from requiring the holder to convert as of such date.
(ii) Within ten (10) Business Days after the occurrence of a redemption eventRedemption Event, the Corporation shall have occurredprovide each holder of Series A-X Preferred Stock with notice of the Redemption Event. The notice shall state:
(aA) If the Corporation fails to have a registration statement effective within one hundred fifty (150) days of the date of such Redemption Event, and, briefly, the Stock Purchase Agreement, at the option of the Purchaser; orevents causing such Redemption Event;
(bB) failure the date by which the Redemption Event Notice pursuant to deliver the shares of Common Stock required to this Section 5(d) must be delivered upon conversion of the shares of Series A Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase Agreement; orgiven;
(cC) failure the Redemption Event Date;
(D) the Maximum Number of Redemption Event Shares;
(E) the holder’s right to require the Corporation to have authorized redeem or convert (at the Corporation’s election) such number of shares of Common Stock issuable upon conversion of the shares of Series A A-X Preferred Stock or exercise as would equal the Maximum Number of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); orRedemption Event Shares;
(dF) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of whether the Corporation is not electing to redeem or exercise its rights to convert such Designated Number of Redemption Event Shares as may thereafter be specified by the survivor holder (and in the event that the Corporation is electing to exercise its rights to convert such shares, the place or in which holders places where certificates for such shares are to be surrendered for issuance of certificates representing shares of Common Stock);
(G) the then-current Conversion Price and the then-current Corporation Conversion Price;
(H) that the Series A-X Preferred Stock that is the subject of redemption pursuant to a Redemption Event Notice may be converted into Common Stock pursuant to Section 6(a)(i) only to the extent that the Redemption Event Notice has been withdrawn in accordance with the terms of this Certificate;
(I) the procedures that the holder must follow to exercise rights under this Section 5(d); and
(J) the procedures for withdrawing a Redemption Event Notice.
(iii) The holder may exercise its rights specified in this Section 5(d) by delivery to the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; a written notice (Ca “REDEMPTION EVENT NOTICE”) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election close of business on the Business Day next preceding the Redemption Event Date specifying the Designated Number of Redemption Event Shares. The holder may specify a Designated Number of Redemption Event Shares that is less than the Maximum Number of Redemption Event Shares only if the amount so designated is not less than one whole share. Notwithstanding anything herein to the contrary, the holder shall have the right to withdraw any Redemption Event Notice in whole or nomination of such director. then, and in each and every such case, a portion thereof so long as such redemption event has not been remediedthe remaining Designated Number of Redemption Event Shares, the holders of if any, is not less than fifty-one percent (51%) of the shares of Series A Preferred Stock then outstanding, by notice in writing whole share at any time prior to the Corporation (close of business on the date Business Day next preceding the Redemption Event Date by written notice of such notice withdrawal given to the "Redemption Notice Date"), may demand that the Corporation redeem, and the Corporation shall redeem, each share of Series A Preferred Stock then outstanding at a price per share equal to one hundred twenty-five percent (125%) of the sum of (x) the Stated Value and (y) the aggregate accrued and unpaid dividends on such Redemption Notice DateCorporation.
Appears in 1 contract
Redemption Events. In case one or more of the following events, each a redemption event, shall have occurred:
(ai) If the The Corporation fails to have a registration statement effective within one hundred fifty (150) days of the date of the Stock Purchase Agreementmay, at the option of the Purchaser; or
(b) failure any time and from time to deliver the shares of Common Stock required to be delivered upon conversion time, redeem all or any portion of the shares of Series A B Preferred Stock then outstanding at the Optional Redemption Price per share; provided, that any such redemption shall be on a pro rata basis among the holders of Series B Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase Agreement; or
(c) failure of the Corporation to have authorized accordance with the number of shares of Common Series B Preferred Stock issuable upon conversion of then held by such holders.
(ii) On February 15, 2025, the Corporation shall redeem all shares of Series A B Preferred Stock then outstanding at the Mandatory Redemption price per share. There shall be no premium or exercise penalty payable in connection with any such mandatory redemption.
(iii) Except in the case of a Third Party Deleveraging Event which shall be governed by Section 7(a)(vi), concurrently with and as a condition to the consummation of a Change of Control, subject to the prior repayment in full of the obligations under the Credit Agreement as required pursuant to the terms thereof, the Corporation shall repurchase all Series B Preferred Stock Purchase Warrants then outstanding at the Optional Redemption Price per share.
(iv) Except in the case of a Third Party Deleveraging Event which shall be governed by Section 7(a)(vi), in the event of a Qualifying Equity Sale, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Qualifying Equity Sale), use all of the Net Cash Proceeds from such Qualifying Equity Sale to redeem the maximum number of shares of Series B Preferred Stock that are redeemable from such Net Cash Proceeds from such Qualifying Equity Sale at the Optional Redemption Price per share; provided that any such redemption shall be on a pro rata basis among the holders of Series B Preferred Stock in accordance with the number of shares of Series B Preferred Stock then held by such holders; provided, further, that the Corporation shall not be required to effect any redemption pursuant to this clause unless such redemption is not prohibited by the Credit Agreement (or any credit facility that refinances or replaces the Credit Agreement so long as any such credit facility that refinances or replaces the Credit Agreement or any amendment of the Credit Agreement after the date hereof is not more restrictive than the Credit Agreement as in effect on the date hereof with respect to such redemptions).
(v) In the event of a Significant Disposition, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Significant Disposition), use all of the Net Cash Proceeds from such Significant Disposition to redeem the maximum number of shares of Series B Preferred Stock that are redeemable from such Net Cash Proceeds from such Significant Disposition at the Optional Redemption Price per share; provided that (x) any such redemption shall be on a pro rata basis among the holders of Series B Preferred Stock in accordance with the number of shares of Series B Preferred Stock then held by such holders and (y) if any portion of the consideration from such Significant Disposition is not in the form of cash consideration, then for purposes of this clause (v) any such non-cash consideration shall be included in the calculation of Net Cash Proceeds as and when converted to cash; provided, further, that the Corporation shall not be required to effect any redemption pursuant to this clause (v) unless such redemption is not prohibited by the Credit Agreement (or any credit facility that refinances or replaces the Credit Agreement so long as any such credit facility that refinances or replaces the Credit Agreement or any amendment of the Credit Agreement after the date hereof is not more restrictive than the Credit Agreement as in effect on the date hereof with respect to such redemptions).
(vi) In the event of a Third Party Deleveraging Event, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Third Party Deleveraging Event), (A) redeem or otherwise cause to be purchased by a third party 50,000 shares of the Original Series B Preferred Stock at the Optional Redemption Price per share and (B) redeem or otherwise cause to be purchased by a third party, 50,000 shares of the Additional Series B Preferred Stock at the Mandatory Redemption Price per share (unless a Reinstatement Event (as defined in the Securities Purchase Tranche 1 Equity Commitment Agreement)) occurs, including conversion of any in which case such 50,000 shares of Additional Series A B Preferred Stock shall be redeemed or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same otherwise caused to be remedied has been given purchased by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is third party at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter definedOptional Redemption Price per share.), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Common Stock of the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) of the shares of Series A Preferred Stock then outstanding, by notice in writing to the Corporation (the date of such notice the "Redemption Notice Date"), may demand that the Corporation redeem, and the Corporation shall redeem, each share of Series A Preferred Stock then outstanding at a price per share equal to one hundred twenty-five percent (125%) of the sum of (x) the Stated Value and (y) the aggregate accrued and unpaid dividends on such Redemption Notice Date
Appears in 1 contract
Sources: Equity Commitment Agreement (Infrastructure & Energy Alternatives, Inc.)
Redemption Events. In case The Preference Shares shall forthwith be redeemed at the Redemption Amount upon the occurrence of any one or more of the following eventsevents (each, each a redemption event“Redemption Event”), shall have occurredwhether or not caused by or for any reason whatsoever outside the control of the Company, namely:
1.5.1. the failure by the Company to redeem all the Preference Shares on or prior to the Final Scheduled Redemption Date or to redeem any Preference Share on the Voluntary Redemption Date thereof if a Voluntary Redemption Notice has been given in relation thereto (aand has not been revoked) If and such redemption has not occurred 3 (three) Business Days after receipt by the Corporation fails to have a registration statement effective within one hundred fifty (150) days Company of notice from the date of the Stock Purchase Agreement, at the option of the PurchaserPreference Shareholder demanding such redemption; or
1.5.2. an event occurs or circumstances arise which have a Material Adverse Effect which remains 3 (bthree) failure Business Days after the Preference Shareholder has provided written notice thereof to deliver the shares of Common Stock required to be delivered upon conversion of the shares of Series A Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase AgreementCompany; or
(c) failure of 1.5.3. the Corporation Company and/or the Guarantors fail to have authorized the number of shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock or exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or comply with any of its other covenants or agreements contained material obligations in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization terms of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement Transaction Agreements to which it is party and such failure remains unremedied 5 (five) Business Days) after the Preference Shareholder has demanded such remedy by written notice to the Company; or
1.5.4. any Insolvency Event occurs in respect of the Company and/or the Guarantors and such Insolvency Event is not remedied within 3 (three) Business Days of receipt by the Company of written notice from the Preference Shareholder requiring such event to be remedied; or
1.5.5. unless agreed to in advance in writing by the Preference Shareholder, a party resolution is proposed or by passed in terms of which it is boundthe Company and/or the Guarantors, will dispose of, all or a substantial part of its assets or otherwise ceases to carry on all or a material part of its business, and such default resolution or disposal is not waived withdrawn or cured rescinded within 3 (three) Business Days of receipt by the applicable grace periodCompany of written notice from the Preference Shareholder requiring such withdrawal or rescission; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation 1.5.6. any Transaction Agreement (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D material rights of the Securities Exchange Act of 1934, as amended Preference Shareholder under a Transaction Agreement) is or becomes invalid or unenforceable and which remains invalid or unenforceable 1 (one) Business Day after the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Common Stock of the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior Preference Shareholder has provided written notice thereof to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been Company requiring it to be remedied, the holders of not less than fifty-one percent (51%) of the shares of Series A Preferred Stock then outstanding, by notice in writing to the Corporation (the date of such notice the "Redemption Notice Date"), may demand that the Corporation redeem, and the Corporation shall redeem, each share of Series A Preferred Stock then outstanding at a price per share equal to one hundred twenty-five percent (125%) of the sum of (x) the Stated Value and (y) the aggregate accrued and unpaid dividends on such Redemption Notice Date.
Appears in 1 contract
Sources: Preference Share Subscription Agreement (Gold Fields LTD)
Redemption Events. In case one or more of the following events, each a redemption event, shall have occurred:
(a) If the Corporation fails to have a registration statement effective within one hundred fifty eighty (150180) days of the date of the Stock Purchase Agreement, at the option of the Purchaser, the Corporation shall redeem the outstanding shares of Series A Preferred Stock at a redemption price of one hundred twenty-five percent (125%) of the Stated Value per share plus accrued and unpaid dividends thereon, if any; or
(b) failure to deliver the shares of Common Stock required to be delivered upon conversion of the shares of Series A Preferred Stock in the manner and at the time required by Section 5 of the Securities Purchase Agreement; or
(c) failure of the Corporation to have authorized the number of shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock or exercise of the Stock Purchase Warrants (as defined in the Securities Purchase Agreement), including conversion of any shares of Series A Preferred Stock or exercise of any Stock Purchase Warrants, issuable upon conversion of the Supplemental Warrant (as defined in the Securities Purchase Agreement); or
(d) failure on the part of the Corporation to duly observe or perform any of the provisions of this Certificate of Designations or any of its other covenants or agreements contained in the Securities Purchase Agreement, or to cure any material breach in a material representation or covenant contained in the Securities Purchase Agreement or the Registration Rights Agreement for a period of ten (10) days after the date on which written notice of such failure or breach requiring the same to be remedied has been given by a registered holder of shares of Series A Preferred Stock to the Corporation; or
(e) a decree or order by a court having jurisdiction has been entered adjudging the Corporation (or any Material Subsidiary) a bankrupt or insolvent, or approving a petition seeking reorganization of the Corporation (or any Material Subsidiary) under any applicable bankruptcy law and such decree or order has continued undischarged or unstayed for a period of sixty (60) days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation (or any Material Subsidiary) or of all or substantially all of its property, or for the winding-up or liquidation of its affairs, has been entered, and has remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the Corporation (or any Material Subsidiary) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a petition or answer or consent seeking reorganization under applicable law, or consents to the filing of any such petition or to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of all or substantially all of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; or if the Corporation (or any Material Subsidiary) shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property which is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or if the Corporation (or any Material Subsidiary) takes corporate action in furtherance of any of the aforesaid purposes or conditions; or
(g) If any default shall occur under any indenture, mortgage, agreement, instrument or commitment evidencing or under which there is at the time outstanding any indebtedness of the Corporation (or a Material Subsidiary, as hereinafter defined), in excess of $50,000400,000, or which results in such indebtedness, in an aggregate amount (with other defaulted indebtedness) in excess of $50,000 400,000 becoming due and payable prior to its due date and if such indenture or instrument so requires, the holder or holders thereof (or a trustee on their behalf) shall have declared such indebtedness due and payable; or
(h) If any of the Corporation or its subsidiaries shall default in the observance or performance of any material term or provision of a material agreement to which it is a party or by which it is bound, and such default is not waived or cured within the applicable grace period; or
(i) If a final judgment which, either alone or together with other outstanding final judgments against the Corporation and its subsidiaries, exceeds an aggregate of $50,000 shall be rendered against the Corporation (or any Material Subsidiary) and such judgment shall have continued undischarged or unstayed for thirty (30) days after entry thereof; or
(j) If there shall occur a Change in Control of the Corporation (as defined below). Nothing in this subsection shall limit the right of a holder of Series A Preferred Stock to convert their shares of Series A Preferred Stock on or prior to such Change in Control. For purposes hereof, a "Change in Control" shall be deemed to have occurred if (A) any person or group (as defined for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have become the beneficial owner or owners of more than 50% of the outstanding voting stock of the Corporation; (B) there shall have occurred a merger or consolidation in which the Corporation or an affiliate of the Corporation is not the survivor or in which holders of the Common Stock of the Corporation shall have become entitled to receive cash, securities of the Corporation other than voting common stock or securities of any other person; (C) at any time persons constituting the Existing Board of Directors cease for any reason whatsoever to constitute at least a majority of the members of the Board of Directors of the Corporation; or (D) there shall have occurred a sale of all or substantially all the assets of the Corporation. For purposes hereof, the term "Existing Board of Directors" shall mean the persons constituting the Board of Directors of the Corporation on the date hereof, together with each new director whose election, or nomination for election by the Corporation's stockholders is approved by a vote of the majority of the members of the Existing Board of Directors who are in office immediately prior to the election or nomination of such director. then, and in each and every such case, so long as such redemption event has not been remedied, the holders of not less than fifty-one percent (51%) of the shares of Series A Preferred Stock then outstanding, by notice in writing to the Corporation (the date of such notice the "Redemption Notice Date"), may demand that the Corporation redeem, and the Corporation shall redeem, each share of Series A Preferred Stock then outstanding at a price per share equal to one hundred twenty-five percent (125%) of the sum of (x) the Stated Value and (y) the aggregate accrued and unpaid dividends on such Redemption Notice Datesubstantially
Appears in 1 contract
Sources: Securities Purchase Agreement (Dunn Computer Corp /Va/)