Share Redemption. (1) During the Share Redemption Period, the Company shall, as provided in Sections 2(d)(2) and 2(d)(3), redeem the principal installments of this Note due on November 2, 2005 and November 2, 2008 in whole or from time to time in part, in each such case by issuing the number of shares of Common Stock to the Holder determined as provided in Section 2(c)(2), so long as the following conditions precedent are satisfied: (A) on the date a particular Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date, no Event of Default and no event which, with notice or passage of time, or both, would become an Event of Default has occurred and is continuing (unless, by reason of such redemption, the requirements of this clause (A) will be satisfied immediately after the redemption of this Note and the Other Note on the applicable Share Redemption Date and the Company shall furnish Company Certificates to the Holder to such effect on the date such Share Redemption Notice is given to the Holder and on the applicable Share Redemption Date); (B) on the date such Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date, no Repurchase Event has occurred with respect to which the Holder has the right to exercise repurchase rights pursuant to Section 5 or with respect to which the Holder has exercised such repurchase rights and the Repurchase Price has not been paid to the Holder and no event which, with notice or passage of time, or both, would become a Repurchase Event has occurred and is continuing; (C) on the date such Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date, the Registration Statement shall be effective and available for use by the Holder, the holders of the Other Note and the holders of the Warrants for the resale of the shares of Common Stock issued and issuable upon such Share Redemption and issued or issuable upon conversion of this Note and the Other Note and issued or issuable upon exercise of the Warrants, as the case may be, and is reasonably expected to remain effective and available for such use for at least 30 days after the applicable Share Redemption Date, and the Company shall be in compliance in all material respects with its obligations under the Registration Rights Agreement; (D) on the date such Share Redemption Notice is given, the Company has authorized and unissued shares of Common Stock not reserved for any purpose other than Share Redemption of this Note in an amount sufficient to satisfy the applicable Share Redemption Price by issuance of shares of Common Stock; (E) the Share Redemption Date selected by the Company in accordance with this Section 2(c) and set forth in such Share Redemption Notice shall be at least 24 Trading Days after any earlier Share Redemption Date; (F) the Company shall have complied with Section 3(o) with respect to all Share Redemptions occurring prior to the giving of such Share Redemption Notice; (G) on the date such Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date no Maximum Share Amount Deficiency exists and no Maximum Share Amount Deficiency would result from such Share Redemption or the contemporaneous redemption of the Other Note pursuant to Section 2(c) thereof; (H) during the period beginning five days prior to the date the Company gives such Share Redemption Notice and ending on the applicable Share Redemption Date the Company shall not have been engaged in discussions or negotiations concerning, or entered in to an agreement or received any proposal for, any transaction that might result in a Fundamental Change, and the Company shall not enter into any agreement or accept any proposal for, any transaction that might result in a Fundamental Change for a period of 60 days after the applicable Share Redemption Date; and (I) the Computed Price for such Share Redemption is not less than the par value of the Common Stock. In order to exercise its right of redemption under this Section 2(c) the Company shall give the particular Share Redemption Notice to the Holder not less than 17 Trading Days or more than 19 Trading Days prior to the applicable Share Redemption Date, stating: (1) that the Company is exercising its right to redeem this Note in accordance with this Section 2(c), (2) the principal amount of this Note to be redeemed (assuming no conversion of this Note from the date the Company gives such Share Redemption Notice to the applicable Share Redemption Date and that the Share Redemption Share Amount for such Share Redemption will be computed based on the entire such principal amount), (3) the amount of the Share Redemption Price payable on such Share Redemption Date (assuming no conversion of this Note from the date the Company gives such Share Redemption Notice to the applicable Share Redemption Date and that the Share Redemption Share Amount for such Share Redemption will be computed based on the entire principal amount included such Share Redemption Price), (4) the principal installment to which such Share Redemption shall be applied, (5) the applicable Share Redemption Date and (6) that all of the conditions of this Section 2(c) entitling the Company to call this Note for redemption have been met. As promptly as practicable, but in no event later than three Trading Days, after the applicable Share Redemption Date, the Company shall issue and shall deliver to the Holder or the Holder’s designee the number of full shares of Common Stock issuable upon such Share Redemption of this Note or portion hereof in accordance with the provisions of this Section 2(c) and deliver a check or cash in respect of any fractional interest in respect of a share of Common Stock arising upon such redemption, as provided in Section 2(c)(7). In lieu of delivering physical certificates for the shares of Common Stock issuable upon any such redemption of this Note, provided the Transfer Agent is participating in FAST, upon request of the Holder, the Company shall use commercially reasonable efforts to cause the Transfer Agent electronically to transmit such shares of Common Stock issuable upon redemption to the Holder (or its designee), by crediting the account of the Holder’s (or such designee’s) broker or other participant with DTC through DWAC (provided that the same time periods herein as for stock certificates shall apply). The Holder shall have the right, exercisable by notice given to the Company from time to time after the Company gives a Share Redemption Notice for a particular Share Redemption, to require the Company to deliver to the Holder a portion of the shares of Common Stock issuable in connection with a particular Share Redemption in advance of the date that is three Trading Days after the applicable Share Redemption Date, in which case the shares so requested shall be delivered within three Trading Days after the Holder gives such notice to the Company. The aggregate number of shares of Common Stock required to be so delivered in advance of a particular Share Redemption Date may not exceed the sum for the elapsed Trading Days in the applicable Share Redemption Computation Period of quotient obtained by dividing (1) the Share Redemption Daily Amount for each such Trading Day by (2) the Computed Price for such Trading Day. (2) The number of shares of Common Stock issuable by the Company in respect of each Share Redemption shall be the Share Redemption Share Amount for such Share Redemption. Notwithstanding the principal amount of this Note to be redeemed as stated in the Share Redemption Notice for a particular Share Redemption, the principal amount actually redeemed shall be the sum, for all of the Trading Days in the Share Redemption Computation Period for such Share Redemption, of (x) the principal amount of this Note included in the amount specified in clause (1) of the definition of Share Redemption Daily Amount for each Trading Day in such Share Redemption Computation Period for which the Share Redemption Daily Amount for such Trading Day is computed under clause (1) of such definition, or (y) the product obtained by multiplying (i) the amount set forth in subclause (A) of the definition of Share Redemption Daily Limitation times (ii) the amount set forth in subclause (B) of the definition of Share Redemption Daily Limitation for each Trading Day in such Share Redemption Computation Period for which the Share Redemption Daily Amount for such Trading Day is computed under clause (2) of such definition. (3) The Company shall not be entitled to give a Share Redemption Notice or to redeem any portion of this Note with respect to which the Holder has given a Conversion Notice on or prior to the date the Company gives such Share
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Share Redemption. (1a) During Subject to the terms and conditions hereof and the Certificate of Designations, on or before the Closing Date, Purchaser shall deposit in trust (the "Redemption Fund") on behalf of Holdings by wire transfer of immediately available funds (the "Purchaser Contribution") with Chase Manhattan Bank, N.A. (the "Redemption Agent") as are required to redeem, concurrently with the consummation of the stock purchases contemplated by Section 2.1, those shares of Class A Stock and Class C Stock that do not constitute Additional Shares for purposes of this Agreement (the "Redeemed Shares"). The price to be paid for each such share (the "Redemption Price") shall be the Per Share Redemption PeriodAmount less, in accordance with Section 5 of the Certificate of Designations, the Company shallpro rata share, based on the number of Shares so redeemed from such holder, of such holder of Redeemed Shares of the expenses of the purchase and sale of Shares pursuant to this Agreement to be borne by the Sellers, if any, including, without limitation, legal, accounting and investment banking fees and expenses to be borne by the Sellers, if any. Purchaser and Holdings shall cause the Redemption Agent to give notice of such redemption at least two business days prior to the Closing and, on and after the Closing Date, pay the Redemption Price per Redeemed Share to each holder of Redeemed Shares provided for in this Section 2.3 out of the Redemption Fund promptly after the surrender to the Redemption Agent by such holder of stock certificates representing such Redeemed Shares for cancellation. If for any reason (including losses) the Redemption Fund is inadequate to pay the amounts required under this Section 2.3, Purchaser shall in any event be liable for payment thereof. In accordance with Section 5 of the Certificate of Designations, all certificates representing Redeemed Shares, including all certificates not delivered or surrendered to the Redemption Agent for cancellation shall be deemed to be canceled by Holdings as of the Closing Date and shall thereafter no longer represent any equity interest in or other rights with respect to Holdings other than the right to receive the Redemption Price per Redeemed Share upon surrender to the Redemption Agent for cancellation.
(b) Contemporaneously with the completion of such redemptions, in consideration of the funding provided for in Sections 2(d)(2) and 2(d)(3Section 2.3(a), redeem the principal installments of this Note due on November 2, 2005 and November 2, 2008 in whole or from time Holdings shall issue to time in part, in each such case by issuing the Purchaser that number of shares of Common Stock to representing the Holder determined as provided in Section 2(c)(2), so long as the following conditions precedent are satisfied:
(A) on the date a particular Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date, no Event of Default and no event which, with notice or passage of time, or both, would become an Event of Default has occurred and is continuing (unless, by reason of such redemption, the requirements of this clause (A) will be satisfied immediately after the redemption of this Note and the Other Note on the applicable Share Redemption Date and the Company shall furnish Company Certificates to the Holder to such effect on the date such Share Redemption Notice is given to the Holder and on the applicable Share Redemption Date);
(B) on the date such Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date, no Repurchase Event has occurred with respect to which the Holder has the right to exercise repurchase rights pursuant to Section 5 or with respect to which the Holder has exercised such repurchase rights and the Repurchase Price has not been paid to the Holder and no event which, with notice or passage of time, or both, would become a Repurchase Event has occurred and is continuing;
(C) on the date such Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date, the Registration Statement shall be effective and available for use by the Holder, the holders of the Other Note and the holders of the Warrants for the resale of the shares of Common Stock issued and issuable upon such Share Redemption and issued or issuable upon conversion of this Note and the Other Note and issued or issuable upon exercise of the Warrants, as the case may be, and is reasonably expected to remain effective and available for such use for at least 30 days after the applicable Share Redemption Date, and the Company shall be in compliance in all material respects with its obligations under the Registration Rights Agreement;
(D) on the date such Share Redemption Notice is given, the Company has authorized and unissued shares of Common Stock not reserved for any purpose other than Share Redemption of this Note in an amount sufficient to satisfy the applicable Share Redemption Price by issuance of shares of Common Stock;
(E) the Share Redemption Date selected by the Company in accordance with this Section 2(c) and set forth in such Share Redemption Notice shall be at least 24 Trading Days after any earlier Share Redemption Date;
(F) the Company shall have complied with Section 3(o) with respect to all Share Redemptions occurring prior to the giving of such Share Redemption Notice;
(G) on the date such Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date no Maximum Share Amount Deficiency exists and no Maximum Share Amount Deficiency would result from such Share Redemption or the contemporaneous redemption of the Other Note pursuant to Section 2(c) thereof;
(H) during the period beginning five days prior to the date the Company gives such Share Redemption Notice and ending on the applicable Share Redemption Date the Company shall not have been engaged in discussions or negotiations concerning, or entered in to an agreement or received any proposal for, any transaction that might result in a Fundamental Change, and the Company shall not enter into any agreement or accept any proposal for, any transaction that might result in a Fundamental Change for a period of 60 days after the applicable Share Redemption Date; and
(I) the Computed Price for such Share Redemption is not less than the par value of the Common Stock. In order to exercise its right of redemption under this Section 2(c) the Company shall give the particular Share Redemption Notice to the Holder not less than 17 Trading Days or more than 19 Trading Days prior to the applicable Share Redemption Date, stating: (1) that the Company is exercising its right to redeem this Note in accordance with this Section 2(c), (2) the principal amount of this Note to be redeemed (assuming no conversion of this Note from the date the Company gives such Share Redemption Notice to the applicable Share Redemption Date and that the Share Redemption Share Amount for such Share Redemption will be computed based on the entire such principal amount), (3) the amount of the Share Redemption Price payable on such Share Redemption Date (assuming no conversion of this Note from the date the Company gives such Share Redemption Notice to the applicable Share Redemption Date and that the Share Redemption Share Amount for such Share Redemption will be computed based on the entire principal amount included such Share Redemption Price), (4) the principal installment to which such Share Redemption shall be applied, (5) the applicable Share Redemption Date and (6) that all of the conditions of this Section 2(c) entitling the Company to call this Note for redemption have been met. As promptly as practicable, but in no event later than three Trading Days, after the applicable Share Redemption Date, the Company shall issue and shall deliver to the Holder or the Holder’s designee the number of full shares of Common Stock issuable upon such Share Redemption of this Note or portion hereof in accordance with the provisions of this Section 2(c) and deliver a check or cash in respect of any fractional interest in respect of a share of Common Stock arising upon such redemption, as provided in Section 2(c)(7). In lieu of delivering physical certificates for the shares of Common Stock issuable upon any such redemption of this Note, provided the Transfer Agent is participating in FAST, upon request of the Holder, the Company shall use commercially reasonable efforts to cause the Transfer Agent electronically to transmit such shares of Common Stock issuable upon redemption to the Holder (or its designee), by crediting the account of the Holder’s (or such designee’s) broker or other participant with DTC through DWAC (provided that the same time periods herein as for stock certificates shall apply). The Holder shall have the right, exercisable by notice given to the Company from time to time after the Company gives a Share Redemption Notice for a particular Share Redemption, to require the Company to deliver to the Holder a portion of the shares of Common Stock issuable in connection with a particular Share Redemption in advance of the date that is three Trading Days after the applicable Share Redemption Date, in which case the shares so requested shall be delivered within three Trading Days after the Holder gives such notice to the Company. The aggregate total number of shares of Common Class A Stock required to be and Class C Stock so delivered in advance of a particular Share Redemption Date may not exceed the sum for the elapsed Trading Days in the applicable Share Redemption Computation Period of quotient obtained by dividing (1) the Share Redemption Daily Amount for each such Trading Day by (2) the Computed Price for such Trading Dayredeemed.
(2c) The number Redemption Agent shall invest undistributed portions of shares the Redemption Fund as Purchaser directs in obligations of Common Stock issuable or guaranteed by the Company United States of America, in respect commercial paper obligations receiving an investment grade rating from both Moody's Investor Services, Inc. and Standard & Poor's Corporation, ▇▇ ▇▇ ▇ertificates of each Share Redemption deposit, bank repurchase agreements or banker's acceptances of commercial banks with capital exceeding $1,000,000,000 (collectively, "Permitted Investments"); provided, however, that the maturities of Permitted Investments shall be such as to permit the Share Redemption Share Amount Agent to make prompt payment to holders of Class A Stock and Class C Stock entitled thereto as contemplated by this Section. The Redemption Fund shall not be used for such Share Redemptionany purpose except as expressly provided in this Agreement. Notwithstanding the principal amount of this Note to be redeemed as stated Any cash, cash equivalents or Permitted Investments remaining in the Share Redemption Notice for a particular Share Redemption, Fund following the principal amount actually redeemed shall be the sum, for all earlier of the Trading Days in the Share Redemption Computation Period for such Share Redemption, of (x) the principal amount of this Note included in the amount specified in clause (1) of the definition of Share Redemption Daily Amount for each Trading Day in such Share Redemption Computation Period for which the Share Redemption Daily Amount for such Trading Day is computed under clause (1) of such definition, or (y) the product obtained by multiplying (i) the amount set forth in subclause (A) payment of the definition Redemption Price per Share to each holder of Share Redemption Daily Limitation times Redeemed Shares in respect of such holder's Redeemed Shares and (ii) the sixtieth day following the Closing Date shall be delivered to Purchaser or its designee by the Redemption Agent. Thereafter, the Redemption Agent's duties shall terminate and each holder of Redeemed Shares may surrender to Holdings the stock certificates representing such holder's Redeemed Shares (and subject to applicable abandoned property, escheat and similar laws), receive the Redemption Price per Redeemed Share in exchange therefor. Neither the Redemption Agent nor Holdings shall be liable to a holder of Redeemed Shares for any amounts delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. In no event shall Purchaser, Holdings or the Redemption Agent be required to pay interest on any amount set forth in subclause (B) payable to any Seller, Electing Stockholder or holder of the definition of Share Redemption Daily Limitation for each Trading Day in such Share Redemption Computation Period for which the Share Redemption Daily Amount for such Trading Day is computed under clause (2) of such definitionRedeemed Shares pursuant to this Article II.
(3) The Company shall not be entitled to give a Share Redemption Notice or to redeem any portion of this Note with respect to which the Holder has given a Conversion Notice on or prior to the date the Company gives such Share
Appears in 1 contract
Share Redemption. (1) During the Share Redemption Period, the Company shall, as provided in Sections 2(d)(2) and 2(d)(3), redeem the principal installments of this Note due on November 2, 2005 and November 2, 2008 in whole or from time to time in part, in each such case by issuing the number of shares of Common Stock to the Holder determined as provided in Section 2(c)(2), so long as the following conditions precedent are satisfied:
(A) on the date a particular Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date, no Event of Default and no event which, with notice or passage of time, or both, would become an Event of Default has occurred and is continuing (unless, by reason of such redemption, the requirements of this clause (A) will be satisfied immediately after the redemption of this Note and the Other Note on the applicable Share Redemption Date and the Company shall furnish Company Certificates to the Holder to such effect on the date such Share Redemption Notice is given to the Holder and on the applicable Share Redemption Date);
(B) on the date such Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date, no Repurchase Event has occurred with respect to which the Holder has the right to exercise repurchase rights pursuant to Section 5 or with respect to which the Holder has exercised such repurchase rights and the Repurchase Price has not been paid to the Holder and no event which, with notice or passage of time, or both, would become a Repurchase Event has occurred and is continuing;
(C) on the date such Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date, the Registration Statement shall be effective and available for use by the Holder, the holders of the Other Note and the holders of the Warrants for the resale of the shares of Common Stock issued and issuable upon such Share Redemption and issued or issuable upon conversion of this Note and the Other Note and issued or issuable upon exercise of the Warrants, as the case may be, and is reasonably expected to remain effective and available for such use for at least 30 days after the applicable Share Redemption Date, and the Company shall be in compliance in all material respects with its obligations under the Registration Rights Agreement;
(D) on the date such Share Redemption Notice is given, the Company has authorized and unissued shares of Common Stock not reserved for any purpose other than Share Redemption of this Note in an amount sufficient to satisfy the applicable Share Redemption Price by issuance of shares of Common Stock;
(E) the Share Redemption Date selected by the Company in accordance with this Section 2(c) and set forth in such Share Redemption Notice shall be at least 24 Trading Days after any earlier Share Redemption Date;
(F) the Company shall have complied with Section 3(o) with respect to all Share Redemptions occurring prior to the giving of such Share Redemption Notice;
(G) on the date such Share Redemption Notice is given and at all times thereafter to and including the applicable Share Redemption Date no Maximum Share Amount Deficiency exists and no Maximum Share Amount Deficiency would result from such Share Redemption or the contemporaneous redemption of the Other Note pursuant to Section 2(c) thereof;
(H) during the period beginning five days prior to the date the Company gives such Share Redemption Notice and ending on the applicable Share Redemption Date the Company shall not have been engaged in discussions or negotiations concerning, or entered in to an agreement or received any proposal for, any transaction that might result in a Fundamental Change, and the Company shall not enter into any agreement or accept any proposal for, any transaction that might result in a Fundamental Change for a period of 60 days after the applicable Share Redemption Date; and
(I) the Computed Price for such Share Redemption is not less than the par value of the Common Stock. In order to exercise its right of redemption under this Section 2(c) the Company shall give the particular Share Redemption Notice to the Holder not less than 17 Trading Days or more than 19 Trading Days prior to the applicable Share Redemption Date, stating: (1) that the Company is exercising its right to redeem this Note in accordance with this Section 2(c), (2) the principal amount of this Note to be redeemed (assuming no conversion of this Note from the date the Company gives such Share Redemption Notice to the applicable Share Redemption Date and that the Share Redemption Share Amount for such Share Redemption will be computed based on the entire such principal amount), (3) the amount of the Share Redemption Price payable on such Share Redemption Date (assuming no conversion of this Note from the date the Company gives such Share Redemption Notice to the applicable Share Redemption Date and that the Share Redemption Share Amount for such Share Redemption will be computed based on the entire principal amount included such Share Redemption Price), (4) the principal installment to which such Share Redemption shall be applied, (5) the applicable Share Redemption Date and (6) that all of the conditions of this Section 2(c) entitling the Company to call this Note for redemption have been met. As promptly as practicable, but in no event later than three Trading Days, after the applicable Share Redemption Date, the Company shall issue and shall deliver to the Holder or the Holder’s 's designee the number of full shares of Common Stock issuable upon such Share Redemption of this Note or portion hereof in accordance with the provisions of this Section 2(c) and deliver a check or cash in respect of any fractional interest in respect of a share of Common Stock arising upon such redemption, as provided in Section 2(c)(7). In lieu of delivering physical certificates for the shares of Common Stock issuable upon any such redemption of this Note, provided the Transfer Agent is participating in FAST, upon request of the Holder, the Company shall use commercially reasonable efforts to cause the Transfer Agent electronically to transmit such shares of Common Stock issuable upon redemption to the Holder (or its designee), by crediting the account of the Holder’s 's (or such designee’s's) broker or other participant with DTC through DWAC (provided that the same time periods herein as for stock certificates shall apply). The Holder shall have the right, exercisable by notice given to the Company from time to time after the Company gives a Share Redemption Notice for a particular Share Redemption, to require the Company to deliver to the Holder a portion of the shares of Common Stock issuable in connection with a particular Share Redemption in advance of the date that is three Trading Days after the applicable Share Redemption Date, in which case the shares so requested shall be delivered within three Trading Days after the Holder gives such notice to the Company. The aggregate number of shares of Common Stock required to be so delivered in advance of a particular Share Redemption Date may not exceed the sum for the elapsed Trading Days in the applicable Share Redemption Computation Period of quotient obtained by dividing (1) the Share Redemption Daily Amount for each such Trading Day by (2) the Computed Price for such Trading Day.
(2) The number of shares of Common Stock issuable by the Company in respect of each Share Redemption shall be the Share Redemption Share Amount for such Share Redemption. Notwithstanding the principal amount of this Note to be redeemed as stated in the Share Redemption Notice for a particular Share Redemption, the principal amount actually redeemed shall be the sum, for all of the Trading Days in the Share Redemption Computation Period for such Share Redemption, of (x) the principal amount of this Note included in the amount specified in clause (1) of the definition of Share Redemption Daily Amount for each Trading Day in such Share Redemption Computation Period for which the Share Redemption Daily Amount for such Trading Day is computed under clause (1) of such definition, or (y) the product obtained by multiplying (i) the amount set forth in subclause (A) of the definition of Share Redemption Daily Limitation times (ii) the amount set forth in subclause (B) of the definition of Share Redemption Daily Limitation for each Trading Day in such Share Redemption Computation Period for which the Share Redemption Daily Amount for such Trading Day is computed under clause (2) of such definition.
(3) The Company shall not be entitled to give a Share Redemption Notice or to redeem any portion of this Note with respect to which the Holder has given a Conversion Notice on or prior to the date the Company gives such ShareShare Redemption Notice. Notwithstanding the giving of a particular Share Redemption Notice, the Holder shall be entitled to convert all or any portion of this Note, in accordance with the terms of this Note, to be redeemed by reason of the giving of such Share Redemption Notice by giving a Conversion Notice at any time on or prior to the later of (1) the date which is one Trading Day prior to the applicable Share Redemption Date and (2) if the Company fails to issue or deliver to the Holder the shares of Common Stock issuable in satisfaction of such Share Redemption Price on or before the due date therefor, the date on which the Company issues and delivers to the Holder such shares of Common Stock. If after giving effect to any such conversion of this Note that occurs after the date the Company gives a particular Share Redemption Notice to the Holder, the principal amount of a particular principal installment of this Note remaining outstanding is less than the amount thereof to be redeemed as stated in the applicable Share Redemption Notice, then the Share Redemption Share Amount for such Share Redemption shall be reduced form what it otherwise would be to reflect the reduced outstanding principal amount of this Note and related accrued interest (and interest, if any, thereon at the Default Rate) on the applicable Share Redemption Date resulting from any such conversions of this Note after the Company gives such Share Redemption Notice to the Holder. Such reduction of the Share Redemption Share amount shall be made by reducing the Share Redemption Daily Amounts used to calculate the Share Redemption Share Amount for such Share Redemption in the inverse of their chronological order to the extent necessary to reduce the principal amount reflected in such Share Redemption Share Amount by the principal amount so converted. Any redemption of this Note pursuant to this Section 2(c) that is required by Section 2(d)(2) shall be applied to the installments of principal outstanding on the applicable Share Redemption Date first to the principal installment stated by Section 2(d)(1) to be due on November 2, 2005 and then to the principal installment stated by Section 2(d)(1) to be due on November 2, 2008.
(4) Each redemption of this Note (or portion hereof) pursuant to this Section 2(c) shall be deemed to have been effected on the applicable Share Redemption Date, and the person in whose name any certificate or certificates for shares of Common Stock shall be issuable upon such redemption shall be deemed to have become on such Share Redemption Date the holder of record of the shares represented thereby; provided, however, that if a Share Redemption Date is a date on which the stock transfer books of the Company shall be closed such redemption shall constitute the person in whose name the certificates are to be issued as the record holder thereof for all purposes on the next succeeding day on which such stock transfer books are open. Upon redemption of this Note or any portion hereof pursuant to this Section 2(c), the accrued and unpaid interest on this Note (or portion hereof) so redeemed to (but excluding) the applicable Share Redemption Date shall be deemed to be paid to the Holder of this Note through receipt of such number of shares of Common Stock issued upon redemption of this Note or portion hereof as shall have an aggregate Current Market Price on the Trading Day immediately preceding such Share Redemption Date equal to the amount of such accrued and unpaid interest.
(5) The Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock or other securities or property on redemption of this Note pursuant to this Section 2(c) in a name other than that of the Holder, and the Company shall not be required to issue or deliver any such shares or other securities or property unless and until the person or persons requesting the issuance thereof shall have paid to the Company the amount of any such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Holder shall be responsible for the amount of any income or withholding tax payable in connection with any such redemption of this Note.
(A) If the Company shall have given a Share Redemption Notice in accordance with the terms of this Note, the Company's obligation to issue and deliver the shares of Common Stock upon such redemption on the terms and subject to the conditions of this Note shall be absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any person or any action to enforce the same, any failure or delay in the enforcement of any other obligation of the Company to the Holder, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with such redemption; provided, however, that nothing herein shall limit or prejudice the right of the Company to pursue any such claim in any other manner permitted by applicable law.
(B) If in any case the Company shall fail to issue and deliver the shares of Common Stock to the Holder in connection with a particular redemption of this Note within three Trading Days after the due date therefor, in addition to any other liabilities the Company may have hereunder and under applicable law (i) the Company shall pay or reimburse the Holder on demand for all out-of-pocket expenses, including, without limitation, reasonable fees and expenses of legal counsel, incurred by the Holder as a result of such failure and (ii) if as a result of such failure the Holder shall suffer any direct damages or liabilities from such failure (including, without limitation, margin interest and the cost of purchasing securities to cover a sale (whether by the Holder or the Holder's securities broker) or borrowing of shares of Common Stock by the Holder for purposes of settling any trade involving a sale of shares of Common Stock made by the Holder during the period beginning on the Issuance Date and ending on the date the Company delivers or causes to be delivered to the Holder such shares of Common Stock), then the Company shall upon demand of the Holder pay to the Holder an amount equal to the actual direct, out-of-pocket damages and liabilities suffered by the Holder by reason thereof which the Holder documents to the reasonable satisfaction of the Company. Notwithstanding the foregoing, the Company shall not be liable to the Holder under clause (ii) of the immediately preceding sentence to the extent the failure of the Company to deliver or to cause to be delivered such shares of Common Stock results from fire, flood, storm, earthquake, shipwreck, strike, war, acts of terrorism, crash involving facilities of a common carrier, acts of God, or any similar event outside the control of the Company (it being understood that the action or failure to act of the Transfer Agent shall not be deemed an event outside the control of the Company except to the extent resulting from fire, flood, storm, earthquake, shipwreck, strike,
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Sources: Convertible Note (Zix Corp)