Common use of The CVRS Clause in Contracts

The CVRS. Section 301 Title and Terms. (a) The aggregate number of CVR Certificates which may be authenticated and delivered under this Agreement is limited to 100,000,000, except for CVRs authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other CVRs pursuant to Section 304, 305, 306 or 606 of this Agreement. The Company will not issue any fractional CVRs. (b) The CVRs shall be known and designated as the “Contingent Value Rights” of the Company and shall be unsecured obligations of the Company that rank equally with all other unsecured obligations of the Company and the Holders shall have no rights except for those rights explicitly provided for herein and shall not, by virtue of their ownership of CVRs have any of the rights of a stockholder of the Company. (c) Subject to adjustment pursuant to Section 301(j), the Company shall pay (the “CVR Payment”) to each Holder, on the third Business Day following the Maturity Date, for each CVR held by such Holder, an amount per CVR, if any, as determined by the Company, by which the Target Price exceeds the greater of (i) the average of the Current Market Values of the Shares for each trading day in the Valuation Period and (ii) the Minimum Price. The CVR Payment, if any, shall be paid by the Company, in its sole discretion, in either Cash, Shares or a combination of Cash and Shares; provided, however, the Company shall not be permitted to issue any Shares as part of the CVR Payment unless the amount of the CVR Payment is greater than $.50 per CVR and then only to the extent that the CVR Payment exceeds $.50 per CVR. Any Shares so issued shall be valued (for purposes of calculating the number of shares issuable to Holders) based upon the average of the Current Market Values of the Shares for each trading day in the Valuation Period. Such determinations by the Company absent manifest error shall be final and binding on the Company and the Holders. Not later than the second Business Day after the Maturity Date, the Company shall (x) prepare and file with the Trustee a certificate setting forth such determinations and the facts accounting for such determinations and (y) mail to each Holder a brief summary of such certificate, indicating the locations at which CVRs may be presented for payment. It shall be a condition precedent to the payment of any portion of the CVR Payment in Shares that such Shares be (i) duly authorized, validly issued, fully paid and nonassessable, (ii) not issued in violation of any preemptive rights or rights of first refusal, (iii) authorized for listing on the Nasdaq National Market, subject to official notice of issuance, and (iv) issued either in a transaction that satisfied the requirements of Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”), or pursuant to an effective registration statement under the Securities Act. In addition, it shall be a condition precedent to the payment of any portion of the CVR Payment in Shares that the Company shall have complied with the first two paragraphs of Section 703 of the Agreement. No fractional Shares will be issued as payment of any portion of the CVR Payment. If more than one CVR is surrendered for payment by the same Holder, the number of full Shares issuable as payment of a portion of the CVR Payment in respect of such CVRs shall be computed on the basis of the aggregate number of such CVRs. Instead of any fractional Share that would otherwise be issuable as payment of a portion of the CVR Payment, the Company shall calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th of a Share) in an amount equal to the same fraction of the average of the Current Market Values of the Shares for each trading date in the Valuation Period. (d) Upon the consummation of a Disposition on or prior to the Maturity Date, the Company shall pay (in the manner provided in Section 307) in lieu of the CVR Payment, in Cash, to each Holder for each CVR held by such Holder an amount, if any, as determined by the Company, by which the Discounted Target Price exceeds the greater of (i) (x) the cash amount received for each Share by the holder thereof as a result of such Disposition, plus (y) the average of the Current Market Values of the Shares for each trading day in the 15 consecutive trading day period immediately preceding the date on which the Disposition was consummated (the “Disposition Consummation Date”) of the publicly traded stock consideration, if any, received for each Share by the holder thereof as a result of such Disposition, plus (z) the fair market value, as determined by an Independent Financial Expert, of any other non-cash consideration, if any, received for each Share by the holder thereof as a result of such Disposition, in each case, assuming that such Holder did not exercise any right of appraisal granted under law with respect to such Disposition, and (ii) the Minimum Price. Such determinations by the Company and such Independent Financial Expert absent manifest error shall be final and binding on the Company and the Holders. Such payment shall be made in Cash on the date (the “Disposition Payment Date”) established by the Company, which in no event shall be more than 30 days after the Disposition Consummation Date. (e) As soon as practicable, the Company shall (x) prepare and file with the Trustee a certificate setting forth the determinations referred to in Section 301(d) and the facts accounting for such determinations and (y) mail to each Holder a brief summary of such certificate, indicating the locations at which CVRs may be presented for payment and the date on which the payment referred to in Section 301(d) shall be made. (f) The current market value per share (the “Current Market Value”) shall be calculated at the end of each trading day and shall be, for any given trading day: (i) the volume weighted mean of the sales prices, regular way, on The Nasdaq Stock Market (or, if the shares are not listed thereon, the principal other exchange on which such shares are then listed) on such trading day, as quoted by Bloomberg LP; (ii) if the shares are not then listed or admitted to trading on any securities exchange, the volume weighted mean of the sales prices over such trading day, as reported by Bloomberg LP or, if not so reported, as reported by a reputable quotation source designated by the Company; or (iii) if the shares are not then listed or admitted to trade on any securities exchange and no such reported sale price or bid and asked prices are available, the mean of the averages of the reported high and low and opening and closing bid and asked prices on such trading day, as reported in the Authorized Newspaper.