Cash Settlement Payment Date. The tenth Local Business Day immediately following the last day of the Valuation Period. For the avoidance of doubt, the Seller will remit to the Counterparty on the Cash Settlement Payment Date an amount equal to the Settlement Amount, and will not otherwise be required to return to the Counterparty any of the Prepayment Amount; provided that, if the Settlement Amount is a negative number neither the Seller nor the Counterparty shall be liable to the other party for any payment under this section. Excess Dividend Amount Ex Amount. Optional Early Termination: From time to time and on any date following the Business Combination (any such date, an “OET Date”) and subject to the terms and conditions below, Seller may, in its absolute discretion, terminate the Transaction in whole or in part by providing written notice to Counterparty (the “OET Notice”), no later than the next Payment Date following the OET Date, (which shall specify the quantity by which the Number of Shares shall be reduced (such quantity, the “Terminated Shares”)); provided that “Terminated Shares” includes only such quantity of Shares by which the Number of Shares is to be reduced and included in an OET Notice and does not include any other Shares, whether or not sold, which Shares will not be included in any OET Notice or included in the definition, or when calculating the number, of Terminated Shares. The effect of an OET Notice shall be to reduce the Number of Shares by the number of Terminated Shares specified in such OET Notice with effect as of the related OET Date. As of each OET Date, Counterparty shall be entitled to an amount from Seller, and the Seller shall pay to Counterparty an amount, equal to the product of (x) the number of Terminated Shares and (y) the Reset Price in respect of such OET Date (an “Early Termination Obligation”); provided, that, Seller shall pay the Early Termination Obligation to the accounts and in the amounts as directed by Counterparty. The remainder of the Transaction, if any, shall continue in accordance with its terms. The Early Termination Obligation shall be payable by Seller on the first Local Business Day following the date of delivery by Seller of the OET Notice. For the avoidance of doubt, no other amounts as may be set forth in Section 16.1 and 18.1 of the Swap Definitions shall be due to Counterparty upon an Optional Early Termination. Funding Election: After the Closing Date, Counterparty may request in writing that Seller provide it with additional funding in the amount of $1,000,000, in which case, Seller shall provide such funds to an account designated by Counterparty on the third Business Day after such request; provided, that (a) Seller shall not be obligated to provide such funds until it has sold Shares (excluding any Terminated Shares) for aggregate proceeds of at least $1,000,000, (b) if Seller has provided a Registration Request, Counterparty cannot make a Funding Election until and unless the Registration Statement has been declared and remains effective, and (c) Seller shall not be required to provide funds under more than one Funding Election.
Appears in 2 contracts
Samples: CIIG Capital Partners II, Inc., Zapp Electric Vehicles Group LTD
Cash Settlement Payment Date. The tenth Local Business Day immediately following the last day of the Valuation Period. For the avoidance of doubt, the Seller will remit to the Counterparty on the Cash Settlement Payment Date an amount equal to the Settlement Amount, and will not otherwise be required to return to the Counterparty any of the Prepayment Amount; provided that, if the Settlement Amount is a negative number neither the Seller nor the Counterparty shall be liable to the other party for any payment under this section. Excess Dividend Amount Amount: Ex Amount. Optional Early Termination: From time to time and on any date following the Business Combination Trade Date (any such date, an “OET Date”) and subject to the terms and conditions below, Seller may, in its absolute discretion, terminate the Transaction in whole or in part by providing written notice to Counterparty Counterparty, and if applicable, the Escrow Agent (the “OET Notice”), no later than the next Payment Date following the OET Date, (which shall specify the quantity by which the Number of Shares shall be reduced (such quantity, the “Terminated Shares”)); provided that “Terminated Shares” includes only such quantity of Shares by which the Number of Shares is to be reduced and included in an OET Notice and does not include any other Share sales, Shortfall Sale Shares or sales of Shares that are designated as Shortfall Sales (which designation can be made only up to the amount of Shortfall Sale Proceeds), any Share Consideration Shares sales or any other Shares, whether or not sold, which Shares will not be included in any OET Notice or included in the definition, or when calculating the number, of Terminated Shares. The effect of an OET Notice shall be to reduce the Number of Shares by the number of Terminated Shares specified in such OET Notice with effect as of the related OET Date. As of each OET Date, Counterparty shall be entitled to an amount from Seller, Escrow Account and the Seller Escrow Agent shall pay to Counterparty an amount, equal to the product of (x) the number of Terminated Shares and (y) the Reset Price in respect of such OET Date (an “Early Termination Obligation”), except that no such amount will be due to Counterparty upon any Shortfall Sale; provided, that, Seller the Escrow Agent shall pay the Early Termination Obligation to the accounts and in the amounts as directed by Counterparty. The remainder of the Transaction, if any, shall continue in accordance with its terms. The Early Termination Obligation shall be payable by Seller the Escrow Agent on the first Local Business Day following the date of delivery by Seller the Escrow Agent of the OET Notice. For the avoidance of doubt, no other amounts as may be set forth in Section Sections 16.1 and 18.1 of the Swap Definitions shall be due to Counterparty upon an Optional Early Termination. Funding ElectionThe payment date may be changed within a quarter at the mutual agreement of the parties. Shortfall Sales: After From time to time and on any date following the Closing Trade Date (any such date, a “Shortfall Sale Date”) and subject to the terms and conditions below, Counterparty may request in writing that Seller provide it with additional funding in the amount of $1,000,000may, in which caseits absolute discretion, sell Shortfall Sale Shares, with sales during the first six months following the Trade Date being sold at a price no less than the Reset Price, and in connection with such sales, Seller shall provide such funds written notice to an account designated by Counterparty (the “Shortfall Sale Notice”) no later than the later of (a) the fifth Local Business Day following the Shortfall Sales Date and (b) the first Payment Date after the Shortfall Sales Date, specifying the quantity of the Shortfall Sale Shares and the allocation of the Shortfall Sale Proceeds. Seller shall not have any Early Termination Obligation in connection with any Shortfall Sales. The Counterparty covenants and agrees for a period of at least sixty Local Business Days (commencing on the third Business Day after such requestPrepayment Date or if an earlier Registration Request is submitted by Seller on the Registration Statement Effective Date) not to issue, sell or offer or agree to sell more than $20 million of Shares, or securities or debt that is convertible, exercisable or exchangeable into Shares, including under any existing or future equity line of credit, until the Shortfall Sales equal the Prepayment Shortfall, without the Seller’s consent; provided, however, that nothing in the foregoing covenant shall prohibit (ai) Seller shall not be obligated to provide such funds until it has sold Shares (excluding any Terminated Shares) for aggregate proceeds the grant, issuance or exercise of at least $1,000,000employee stock options or other equity awards under the Counterparty’s equity compensation plans, (bii) if Seller has provided a Registration Requestthe issuance of any securities issued or assumed in connection with the Business Combination, Counterparty cannot make a Funding Election or (iii) repricing of Counterparty’s warrants in connection with the closing of the Business Combination. Unless and until and unless the Registration Statement has been declared and remains effectiveproceeds from Shortfall Sales equal 100% of the Prepayment Shortfall, and in the event that the product of (cx) Seller the difference between (i) the number of Shares as specified in the Pricing Date Notice(s), less (ii) any Shortfall Sale Shares as of such measurement time, multiplied by (y) the VWAP Price, is less than (z) the difference between (i) the Prepayment Shortfall, less (ii) the proceeds from Shortfall Sales as of such measurement time (the “Shortfall Variance”), then the Counterparty, as liquidated damages in respect of such Shortfall Variance, at its option shall not be required to provide funds under more than one Funding Election.within five (5) Local Business Days either:
Appears in 1 contract
Samples: Graf Acquisition Corp. IV
Cash Settlement Payment Date. The tenth Local Business Day immediately following the last day of the Valuation Period. For the avoidance of doubt, the Seller Escrow Agent will remit to the Counterparty on the Cash Settlement Payment Date an amount equal to the Settlement Amount, Amount and will not otherwise be required to return to the Counterparty any of the Prepayment AmountAmount and the Counterparty shall remit to the Seller the Settlement Amount Adjustment; provided thatprovided, that if the Settlement Amount less the Settlement Amount Adjustment is a negative number and either clause (x) of Settlement Amount Adjustment applies or the Counterparty has elected pursuant to clause (y) of Settlement Amount Adjustment to pay the Settlement Amount Adjustment in cash, then neither the Seller nor the Counterparty shall be liable to the other party for any payment under this section. Excess Dividend Amount Amount: Ex Amount. Optional Early Termination: From time to time and on any date following the Business Combination Trade Date (any such date, an “OET Date”) and subject to the terms and conditions below, Seller may, in its absolute discretion, terminate the Transaction in whole or in part by providing written notice to Counterparty Counterparty, and if applicable, the Escrow Agent (the “OET Notice”), no later than the next Payment Date following the OET Date, (which shall specify the quantity by which the Number of Shares shall be reduced (such quantity, the “Terminated Shares”)); provided that “Terminated Shares” includes only such quantity of Shares by which the Number of Shares is to be reduced and included in an OET Notice and does not include any other Share sales, Shortfall Sale Shares or sales of Shares that are designated as Shortfall Sales (which designation can be made only up to the amount of Shortfall Sale Proceeds), any Share Consideration Shares sales or any other Shares, whether or not sold, which Shares will not be included in any OET Notice or included in the definition, or when calculating the number, of Terminated Shares. The effect of an OET Notice shall be to reduce the Number of Shares by the number of Terminated Shares specified in such OET Notice with effect as of the related OET Date. As of each OET Date, Counterparty shall be entitled to an amount from Seller, Escrow Account and the Seller Escrow Agent shall pay to Counterparty an amount, equal to the product of (x) the number of Terminated Shares and (y) the Reset Price in respect of such OET Date (an “Early Termination Obligation”), except that no such amount will be due to Counterparty upon any Shortfall Sale; provided, that, Seller the Escrow Agent shall pay the Early Termination Obligation to the accounts and in the amounts as directed by Counterparty. The remainder of the Transaction, if any, shall continue in accordance with its terms. The Early Termination Obligation shall be payable by Seller the Escrow Agent on the first Local Business Day following the date of delivery by Seller the Escrow Agent of the OET Notice. For the avoidance of doubt, no other amounts as may be set forth in Section Sections 16.1 and 18.1 of the Swap Definitions shall be due to Counterparty upon an Optional Early Termination. Funding ElectionThe payment date may be changed within a quarter at the mutual agreement of the parties. Shortfall Sales: After From time to time and on any date following the Closing Trade Date (any such date, a “Shortfall Sale Date”) and subject to the terms and conditions below, Counterparty may request in writing that Seller provide it with additional funding in the amount of $1,000,000may, in which caseits absolute discretion, sell Shortfall Sale Shares, with sales during the first six months following the Trade Date being sold at a price no less than the Reset Price, and in connection with such sales, Seller shall provide such funds written notice to an account designated by Counterparty (the “Shortfall Sale Notice”) no later than the later of (a) the fifth Local Business Day following the Shortfall Sales Date and (b) the first Payment Date after the Shortfall Sales Date, specifying the quantity of the Shortfall Sale Shares and the allocation of the Shortfall Sale Proceeds. Seller shall not have any Early Termination Obligation in connection with any Shortfall Sales. The Counterparty covenants and agrees for a period of at least sixty Local Business Days (commencing on the third Prepayment Date or if an earlier Registration Request is submitted by Seller on the Registration Statement Effective Date) not to issue, sell or offer or agree to sell more than $20 million of Shares, or securities or debt that is convertible, exercisable or exchangeable into Shares, including under any existing or future equity line of credit, until the Shortfall Sales equal the Prepayment Shortfall, without the Seller’s consent; provided, however, that nothing in the foregoing covenant shall prohibit (i) the grant, issuance or exercise of employee stock options or other equity awards under the Counterparty’s equity compensation plans, (ii) the issuance of any securities issued or assumed in connection with the Business Combination, or (iii) repricing of Counterparty’s warrants in connection with the closing of the Business Combination. Unless and until the proceeds from Shortfall Sales equal 100% of the Prepayment Shortfall, in the event that the product of (x) the difference between (i) the number of Shares as specified in the Pricing Date Notice(s), less (ii) any Shortfall Sale Shares as of such measurement time, multiplied by (y) the VWAP Price, is less than (z) the difference between (i) the Prepayment Shortfall, less (ii) the proceeds from Shortfall Sales as of such measurement time (the “Shortfall Variance”), then the Counterparty, as liquidated damages in respect of such Shortfall Variance, at its option shall within five (5) Local Business Days either: (A) Pay in cash an amount equal to the Shortfall Variance; or (B) Issue and deliver to Seller such number of additional Shares that are equal to (1) the Shortfall Variance, divided by (2) 90% of the VWAP Price (the “Shortfall Variance Shares”). In the event that the Counterparty issues and delivers to Seller Shortfall Variance Shares, within thirty calendar days of such issuance and delivery, Counterparty shall use its commercially reasonable efforts to file (at Counterparty’s sole cost and expense) with the U.S. Securities and Exchange Commission (the “Commission”) a registration statement registering the resale of all shares held by the Seller, including the Recycled Shares (the “Shortfall Variance Registration Statement”), provided, that, the Counterparty’s obligations to file such Shortfall Variance Registration Statement shall be contingent upon Seller furnishing in writing to the Counterparty a completed selling stockholder questionnaire in customary form that contains such information regarding Seller, the securities of the Counterparty held by Seller and the intended method of disposition of the shares as shall be reasonably requested by the Counterparty to effect the registration of the shares, and shall use its commercially reasonable efforts to have the Shortfall Variance Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earliest of (i) the 90th calendar day (or 120th calendar day if the Commission notifies the Counterparty that it will “review” the Shortfall Variance Registration Statement) following the issuance and delivery of the Shortfall Variance Shares and (ii) the 10th Local Business Day after the date the Counterparty is notified (orally or in writing, whichever is earlier) by the Commission that such request; provided, that (a) Seller shall Shortfall Variance Registration Statement will not be obligated “reviewed” or will not be subject to provide such funds until it has sold Shares (excluding any Terminated Shares) for aggregate proceeds of at least $1,000,000, (b) if Seller has provided a Registration Request, Counterparty cannot make a Funding Election until and unless further review. Upon notification by the Commission that the Shortfall Variance Registration Statement has been declared effective by the Commission, within two Local Business Days thereafter, the Counterparty shall file the final prospectus under Rule 424 of the Securities Act of 1933, as amended containing a “plan of distribution” reasonably agreeable to Seller. Counterparty shall not identify Seller as a statutory underwriter in the Registration Statement unless requested by the Commission. The Counterparty will use its commercially reasonable efforts to keep the Shortfall Variance Registration Statement covering the resale of the shares as described above continuously effective (except that the Counterparty shall be entitled to postpone and remains effective, suspend the effectiveness or use of the Shortfall Variance Registration Statement (i) during any customary blackout or similar period or as permitted hereunder and (cii) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of the Counterparty’s Annual Report on Form 10-K), until all such Shortfall Variance Shares have been sold or may be transferred without any restrictions, including the requirement for the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or the volume and manner of sale limitations under Rule 144(e), (f) and (g) under the Securities Act. Seller shall not be required entitled to provide funds use the Shortfall Variance Registration Statement for an underwritten offering of Shortfall Variance Shares. Notwithstanding anything to the contrary contained herein, the Counterparty may delay or postpone filing of such Shortfall Variance Registration Statement, and from time to time require Seller not to sell under the Shortfall Variance Registration Statement or suspend the use or effectiveness of any such Shortfall Variance Registration Statement if it determines in good faith that in order for the registration statement to not contain a material misstatement or omission, an amendment thereto would be needed, or if such filing or use would reasonably be expected to materially affect a bona fide business or financing transaction of the Counterparty or would reasonably be expected to require premature disclosure of information that would materially adversely affect the Counterparty (each such circumstance, a “Suspension Event”); provided, that, (w) the Counterparty shall not so delay filing or so suspend the use of the Shortfall Variance Registration Statement for a period of more than one Funding Electionsixty (60) consecutive days or more than two (2) times in any three hundred sixty (360) day period, and (x) the Counterparty shall use commercially reasonable efforts to make such registration statement available for the sale by Seller of such Shortfall Variance Shares as soon as practicable thereafter. If requested by Seller, the Counterparty shall within five (5) Local Business Days of receipt of such request, subject to receipt of a legal opinion of Counterparty’s counsel, instruct its transfer agent to remove any restrictive legend with respect to transfers under the Securities Act from Shortfall Variance Shares that have been sold pursuant to an effective registration statement or Rule 144 under the Securities Act (subject to all applicable requirements of Rule 144 being met); provided that Seller and its broker shall have timely provided customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent in connection therewith. Any fees (with respect to the transfer agent, Counterparty’s counsel or otherwise) associated with the issuance of any legal opinion required by the Counterparty’s transfer agent or the removal of such legend shall be borne by the Counterparty. Any Shortfall Variance Shares shall constitute Shortfall Shares, and the sale of such Shortfall Variance Shares after the Shortfall Variance Registration Statement is declared effective by the Commission shall be a Shortfall Sale. If the Shortfall Variance has not been paid in cash by the Counterparty, and after the sale of all Shortfall Variance Shares, the proceeds from all Shortfall Sales, including the Shortfall Variance Shares, is less than 100% of the Prepayment Shortfall, then there will be another Shortfall Variance, calculated in accordance with this provision, and the Counterparty shall address such Shortfall Variance as provided for by this provision. This shall continue until such time as the proceeds from all Shortfall Sales equal 100% of the Prepayment Shortfall or the Counterparty shall have paid any Shortfall Variance in cash. With respect to the forgoing and any issuance of Shortfall Variance Shares, the Counterparty shall not issue any Shortfall Variance Shares pursuant to this provision to the extent that after giving effect thereto, the aggregate number of Shares that would be issued pursuant to this provision would exceed 19.99% of the Shares that are issued and outstanding immediately prior to such issuance, which number of shares shall be (i) reduced, on a share-for-share basis, by the number of Shares issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated hereby under applicable rules of the Nasdaq and (ii) appropriately adjusted for any reorganization, recapitalization, non cash dividend, stock split or other similar transaction that occurs after the date of this Confirmation (such maximum number of shares, the “Exchange Cap”), unless and until the Counterparty elects to solicit stockholder approval of the issuance of the Shortfall Variance Shares as contemplated hereby, and the stockholders of the Counterparty have in fact approved the issuance of the Shortfall Variance Shares as contemplated hereby in accordance with the applicable rules of the Nasdaq. In the event that there is an Exchange Cap, if the Counterparty does not elect to solicit stockholder approval and obtain such stockholder approval in accordance with the applicable rules of the Nasdaq, then the Counterparty will pay the Shortfall Variance in cash. Share Consideration: In addition to the Prepayment Amount, Counterparty shall pay directly from the Trust Account, on the Prepayment Date, an amount equal to the product of (x) 34,889 and (y) the Initial Price. The Shares purchased with the Share Consideration (the “Share Consideration Shares”) shall be incremental to the Maximum Number of Shares, shall not be included in the Number of Shares in this Transaction, and the Seller and the Share Consideration Shares shall be free and clear of all obligations with respect to the Seller and such Share Consideration Shares in connection with this Confirmation.
Appears in 1 contract
Samples: Graf Acquisition Corp. IV
Cash Settlement Payment Date. The tenth Local Business Day 25th trading day immediately following the last day of the Valuation PeriodMaturity Date. For the avoidance of doubt, the Seller will remit to the Counterparty on the Cash Settlement Payment Date an amount equal to the Settlement Amount, Amount and will not otherwise be required to return to the Counterparty any of the Prepayment AmountShares; provided thatprovided, that if the Settlement Amount is a negative number neither the Seller nor the Counterparty shall be liable to the other party for any payment under this section. Excess Dividend Amount Amount: Ex Amount. Optional Early Termination: From time to time and on any date following the Business Combination and following an OET Notice regarding Recycled Shares (any such date, an “OET Date”) and subject to the terms and conditions below, Seller may, in its absolute discretion, terminate the Transaction in whole or in part by providing written notice to Counterparty (the “OET Notice”), no later than the next Payment Date following the OET Date, (which shall specify that specifies the quantity of Shares and the amount by which the Number of Shares shall be reduced (such quantity, the “Terminated Shares”)); provided that . For the avoidance of doubt, “Terminated Shares” includes only such quantity of Shares by which the Number of Shares is to be reduced and included specified in an OET Notice Notice, and does not include any other Shares, whether or not sold, which Shares that the Seller does not elect to include in an OET Notice, and no such shares will not be included in any OET Notice the definition of Terminated Shares or included in the definition, or when calculating the number, number of Terminated Shares. The effect of an OET Notice shall be to reduce the Number of Shares by the number of Terminated Shares specified in such the OET Notice with effect as of the related relevant OET Date. As of each OET Date, Counterparty shall be entitled to an amount from Seller, and the Seller shall pay to Counterparty an amount, equal to the product of (x) the number of Terminated Shares and (y) the Reset Price in respect of such OET Date (an “Early Termination Obligation”); provided, that, . Seller shall pay the each Early Termination Obligation to an account designated by Counterparty on the accounts and in first Payment Date following the amounts as directed by CounterpartyOET Date. The remainder of the Transaction, if any, shall continue in accordance with its terms. The Early Termination Obligation shall be payable by Seller on the first Local Business Day following the date of delivery by Seller of the OET Notice. For the avoidance of doubt, no other amounts as may be set forth in Section 16.1 and 18.1 of the Swap Definitions shall be due to Counterparty upon an Optional Early Termination. For the sake of clarity, the Reset Price used for determining the Early Termination Obligation shall be the Reset Price in effect at the time of the OET Date, and not as of the date of any sale of Shares made by the Seller that represent Terminated Shares. Funding Election: After Provided that (a) the Closing DateValuation Date has not yet occurred, Counterparty may request in writing (b) the Share Transfer has occurred prior to African Agriculture’s stockholders approving the Business Combination, (c) the Pubco Shares issued as consideration pursuant to the terms of the Merger Agreement for the AFRAG Shares that constitute the Recycled Shares having been transferred to the Seller’s brokerage account, which transfer shall occur no later than 5 Local Business Days after the closing of the Business Combination, and (d) the issuance of such Pubco Shares shall be registered under the registration statement on Form S-4 filed by 10X Capital with respect to the Business Combination such that such Pubco Shares upon delivery to Seller’s brokerage account are freely tradable by Seller provide it with additional funding in the amount of $1,000,000, in which casewithout restriction, Seller shall provide such funds up to $11,500,000 (the “Additional Funds”) in five tranches to an account designated by Counterparty on Counterparty, of which certain amounts shall be paid by the Seller directly to third parties, as specified in Schedule B, in satisfaction of amounts owed to such parties by 10X Capital or Pubco as follows: First tranche of $5,750,000 funded one Settlement Cycle following the transfer to the Seller’s brokerage account of the Pubco Shares issued as consideration pursuant to the terms of the Merger Agreement for the AFRAG Shares that constitute the Recycled Shares. Second tranche of $1,437,500 funded 30 days after the first tranche. Third tranche of $1,437,500 funded 30 days after the second tranche. Fourth tranche of $1,437,500 funded 30 days after the third Business Day tranche. Fifth tranche of $1,437,500 funded 30 days after such requestthe fourth tranche. Share Adjustments Method of Adjustment: Calculation Agent Adjustment. Extraordinary Events: Consequences of Merger Events involving Counterparty: Share-for-Share: Calculation Agent Adjustment. Share-for-Other: Cancellation and Payment. Share-for-Combined: Component Adjustment. Tender Offer: Applicable; provided, however, that Section 12.1(d) of the Equity Definitions is hereby amended by (ai) Seller shall not be obligated replacing the reference therein to provide such funds until it has sold Shares (excluding any Terminated Shares) for aggregate proceeds of at least $1,000,000, (b) if Seller has provided a Registration Request, Counterparty cannot make a Funding Election until and unless the Registration Statement has been declared and remains effective, “10%” with “25%” and (cii) Seller shall not be required to provide funds under more than one Funding Electionadding “, or of the outstanding Shares,” before “of the Issuer” in the fourth line thereof. Sections 12.1(e) and 12.1(l)(ii) of the Equity Definitions are hereby amended by adding “or Shares, as applicable,” after “voting Shares”.
Appears in 1 contract
Cash Settlement Payment Date. The tenth Local Business Day immediately following the last day of the Valuation Period. For the avoidance of doubt, the Seller will remit to the Counterparty on the Cash Settlement Payment Date an amount equal to the Settlement Amount, Amount and will not otherwise be required to return to the Counterparty any of the Prepayment AmountAmount and the Counterparty shall remit to the Seller the Settlement Amount Adjustment; provided thatprovided, that if the Settlement Amount less the Settlement Amount Adjustment is a negative number and either clause (x) of Settlement Amount Adjustment applies or the Counterparty has elected pursuant to clause (y) of Settlement Amount Adjustment to pay the Settlement Amount Adjustment in cash, then neither the Seller nor the Counterparty shall be liable to the other party for any payment under this section. Excess Dividend Amount Amount: Ex Amount. Optional Early Termination: From time to time and on any date following the Business Combination Trade Date (any such date, an “OET Date”) and subject to the terms and conditions below, Seller may, in its absolute discretion, terminate the Transaction in whole or in part by providing written notice to Counterparty (the “OET Notice”), by the later of (a) the fifth Local Business Day following the OET Date and (b) no later than the next Payment Date following the OET Date, (which shall specify the quantity by which the Number of Shares shall be reduced (such quantity, the “Terminated Shares”)); provided that “Terminated Shares” includes only such quantity of Shares by which the Number of Shares is to be reduced and included in an OET Notice and does not include any other Share sales, Shortfall Sale Shares or sales of Shares that are designated as Shortfall Sales (which designation can be made only up to the amount of Shortfall Sale Proceeds), any Share Consideration Shares sales or any other Shares, whether or not sold, which Shares will not be included in any OET Notice or included in the definition, or when calculating the number, of Terminated Shares. The effect of an OET Notice shall be to reduce the Number of Shares by the number of Terminated Shares specified in such OET Notice with effect as of the related OET Date. As of each OET Date, Counterparty shall be entitled to an amount from Seller, and the Seller shall pay to Counterparty an amount, equal to the product of (x) the number of Terminated Shares and (y) the Reset Price in respect of such OET Date (an “Early Termination Obligation”), except that no such amount will be due to Counterparty upon any Shortfall Sale; provided, that, Seller shall pay the Early Termination Obligation to the accounts and in the amounts as directed by Counterparty. The remainder of the Transaction, if any, shall continue in accordance with its terms. The Early Termination Obligation shall be payable by Seller on the first Local Business Day following the date of delivery by Seller of the OET Notice. For the avoidance of doubt, no other amounts as may be set forth in Section Sections 16.1 and 18.1 of the Swap Definitions shall be due to Counterparty upon an Optional Early Termination. Funding ElectionThe payment date may be changed within a quarter at the mutual agreement of the parties. Shortfall Sales: After From time to time and on any date following the Closing Trade Date (any such date, a “Shortfall Sale Date”) and subject to the terms and conditions below, Counterparty may request in writing that Seller provide it with additional funding in the amount of $1,000,000may, in which caseits absolute discretion, at any sales price, sell Shortfall Sale Shares, and in connection with such sales, Seller shall provide such funds written notice to an account designated by Counterparty (the “Shortfall Sale Notice”) no later than the later of (a) the fifth Local Business Day following the Shortfall Sales Date and (b) the first Payment Date after the Shortfall Sales Date, specifying the quantity of the Shortfall Sale Shares and the allocation of the Shortfall Sale Proceeds. Seller shall not have any Early Termination Obligation in connection with any Shortfall Sales. The Counterparty covenants and agrees for a period of at least sixty Local Business Days (commencing on the third Prepayment Date or if an earlier Registration Request is submitted by Seller on the Registration Statement Effective Date) not to issue, sell or offer or agree to sell any Shares, or securities or debt that is convertible, exercisable or exchangeable into Shares, including under any existing or future equity line of credit, until the Shortfall Sales equal the Prepayment Shortfall; provided, however, that nothing in the foregoing covenant shall prohibit (i) the issuance of any securities issued or assume in connection with the Business Combination or (ii) repricing of Counterparty’s warrants in connection with the closing of the Business Combination. Unless and until the proceeds from Shortfall Sales equal 100% of the Prepayment Shortfall, in the event that the product of (x) the difference between (i) the number of Shares as specified in the Pricing Date Notice(s), less (ii) any Shortfall Sale Shares as of such measurement time, multiplied by (y) the VWAP Price, is less than (z) the difference between (i) the Prepayment Shortfall, less (ii) the proceeds from Shortfall Sales as of such measurement time (the “Shortfall Variance”), then the Counterparty, as liquidated damages in respect of such Shortfall Variance, at its option shall within five (5) Local Business Days either: (A) Pay in cash an amount equal to the Shortfall Variance; or (B) Issue and deliver to Seller such number of additional Shares that are equal to (1) the Shortfall Variance, divided by (2) 90% of the VWAP Price (the “Shortfall Variance Shares”). In the event that the Counterparty issues and delivers to Seller Shortfall Variance Shares, within thirty calendar days of such issuance and delivery, Counterparty shall use its reasonable best efforts to file (at Counterparty’s sole cost and expense) with the U.S. Securities and Exchange Commission (the “Commission”) a registration statement registering the resale of all shares held by the Seller, including the Recycled Shares (the “Shortfall Variance Registration Statement”), and have the Shortfall Variance Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earliest of (i) the 60th calendar day (or 105th calendar day if the Commission notifies the Counterparty that it will “review” the Shortfall Variance Registration Statement) following the issuance and delivery of the Shortfall Variance Shares and (ii) the 5th Local Business Day after the date the Counterparty is notified (orally or in writing, whichever is earlier) by the Commission that such request; provided, that (a) Seller shall Shortfall Variance Registration Statement will not be obligated “reviewed” or will not be subject to provide such funds until it has sold Shares (excluding any Terminated Shares) for aggregate proceeds of at least $1,000,000, (b) if Seller has provided a Registration Request, Counterparty cannot make a Funding Election until and unless further review. Upon notification by the Commission that the Shortfall Variance Registration Statement has been declared effective by the Commission, within two Local Business Days thereafter, the Counterparty shall file the final prospectus under Rule 424 of the Securities Act of 1933, as amended containing a “plan of distribution” reasonably agreeable to Seller. Counterparty shall not identify Seller as a statutory underwriter in the Registration Statement unless requested by the Commission. The Counterparty will use its reasonable best efforts to keep the Shortfall Variance Registration Statement covering the resale of the shares as described above continuously effective (except for customary blackout periods, up to twice per year and remains effectivefor a total of up to 15 calendar days (and not more than 10 calendar days in an occurrence), if and when the Counterparty is in possession of material non-public information the disclosure of which, in the good faith judgment of the Counterparty’s board of directors, would be prejudicial, and the Counterparty agrees to promptly notify Seller of any such blackout determination) until all such shares have been sold or may be transferred without any restrictions including the requirement for the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (cor Rule 144(i)(2) or the volume and manner of sale limitations under Rule 144 under the Securities Act; provided that Counterparty covenants and agrees to make all necessary filings, amendments, supplements and submissions in furtherance of the foregoing, including to register all of Seller’s Shares for resale; provided that it shall be a (“Shortfall Variance Registration Failure”) if (a) the Shortfall Variance Registration Statement covering all of the shares described above in this section is not declared effective after the 60th calendar day (or 105th calendar day if the Commission notifies the Counterparty that it will “review” the Shortfall Variance Registration Statement) after the issuance and delivery of the Shortfall Variance Shares) or (b) the Shortfall Variance Registration Statement after it is declared effective ceases to be continuously effective (subject to the blackout periods as indicated above) as set forth in the preceding sentence for more than 15 consecutive calendar days. Seller will promptly deliver customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent in connection with the Shortfall Variance Registration Statement, including those related to selling shareholders and to respond to comments by the staff of the Commission. If requested by Seller, the Counterparty shall within five (5) Local Business Days of receipt of such request, subject to receipt of a legal opinion of Counterparty’s counsel, instruct its transfer agent to remove any restrictive legend with respect to transfers under the Securities Act from any and all Shares held by Seller if (1) the Shortfall Variance Registration Statement is and continues to be effective under the Securities Act, (2) such Shortfall Variance Shares are sold or transferred pursuant to Rule 144 under the Securities Act (subject to all applicable requirements of Rule 144 being met), or (3) such Shortfall Variance Shares are eligible for sale under Rule 144, without the requirement for the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to the Shortfall Variance Shares and without volume or manner-of-sale restrictions; provided that Seller shall have timely provided customary representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent in connection therewith. Any fees (with respect to the transfer agent, Counterparty’s counsel or otherwise) associated with the issuance of any legal opinion required by the Counterparty’s transfer agent or the removal of such legend shall be borne by the Counterparty. Any Shortfall Variance Shares shall constitute Shortfall Shares, and the sale of such Shortfall Variance Shares after the Shortfall Variance Registration Statement is declared effective by the Commission shall be a Shortfall Sale. If the Shortfall Variance has not been paid in cash by the Counterparty, and after the sale of all Shortfall Variance Shares, the proceeds from all Shortfall Sales, including the Shortfall Variance Shares, is less than 100% of the Prepayment Shortfall, then there will be another Shortfall Variance, calculated in accordance with this provision, and the Counterparty shall address such Shortfall Variance as provided for by this provision. This shall continue until such time as the proceeds from all Shortfall Sales equal 100% of the Prepayment Shortfall or the Counterparty shall have paid any Shortfall Variance in cash. With respect to the forgoing and any issuance of Shortfall Variance Shares, the Counterparty shall not issue any Shortfall Variance Shares pursuant to this provision to the extent that after giving effect thereto, the aggregate number of Shares that would be issued pursuant to this provision would exceed 19.99% of the Shares that are issued and outstanding immediately prior to such issuance, which number of shares shall be (i) reduced, on a share-for-share basis, by the number of Shares issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated hereby under applicable rules of the Nasdaq and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this Confirmation (such maximum number of shares, the “Exchange Cap”), unless and until the Counterparty elects to solicit stockholder approval of the issuance of the Shortfall Variance Shares as contemplated hereby, and the stockholders of the Counterparty have in fact approved the issuance of the Shortfall Variance Shares as contemplated hereby in accordance with the applicable rules of the Nasdaq. In the event that there is an Exchange Cap, if the Counterparty does not elect to solicit stockholder approval and obtain such stockholder approval in accordance with the applicable rules of the Nasdaq, then the Counterparty will pay the Shortfall Variance in cash. Share Consideration: In addition to the Prepayment Amount, Counterparty shall pay directly from the Trust Account, on the Prepayment Date, an amount equal to the product of (x) 50,000 and (y) the Initial Price. The Shares purchased with the Share Consideration (the “Share Consideration Shares”) shall be incremental to the Maximum Number of Shares, shall not be required included in the Number of Shares in this Transaction, and the Seller and the Share Consideration Shares shall be free and clear of all obligations with respect to provide funds under more than one Funding Electionthe Seller and such Share Consideration Shares in connection with this Confirmation.
Appears in 1 contract
Samples: Oxbridge Acquisition Corp.
