本第二修正案和交换协议(以下简称“协议”)是由以下签名页上所列日期签署的,由特艾斯机器人公司(Nauticus Robotics, Inc.)作为特拉华州公司(以下简称“公司”)与签署本协议的投资人(下称“持有人”), with reference to the following facts:
A. Prior to the date hereof, the Company and the Holder and/or certain other investors (the “其他持有者”, and together with the Holder, the “持有人”) entered into that certain Securities Purchase Agreement, dated December 16, 2021 (as may be amended, modified, restated, restructured or supplemented from time to time, each a “证券购买协议(以下简称“协议”)根据该协议,持有人购买了,等其他事项,一定数量的5%原始发行折让优先担保可转换债券(修订、修改或在今日日期之前豁免的,"原始票据未在此处定义的大写词应按照《证券购买协议》中规定的含义解释。
C.公司已经授权发行公司指定为A系列可转换优先股的新系列股票,面值为$0.0001,该系列优先股的条款详见《该系列优先股的指定证书》("新的指定证明书) 附录 A (连同根据其条款发行的任何可转换优先股替换股份,合称为“A类优先股”),该A系列优先股应根据新指定证书的条款转换为普通股份。
D.在结束日期(如下文所定义),“持有人”希望将其在此签字页中所载部分与本批函中未清偿金额交换(其中包括与之相关的本金、利息和其他未清偿金额)(称为“交换票据”)以及(i)在此签字页所载的A系列优先股的总股数(称为“新优先股”, and such shares of Common Stock issuable pursuant to the terms of the New Certificate of Designations, including, without limitation, upon conversion or otherwise, collectively, the “”,(ii)一份C类认股权,形式附于此处的表格,最初可购买公司无面额的A类普通股3,214,285股(“”, and together with the New Preferred Shares, the “非全部”) in reliance on the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the “证券法”).
E.Each of the Company and the Holder desire to effectuate such exchange on the basis and subject to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the parties hereto agree as follows:
(b)授权、执行力、有效性. The Company has the requisite power and authority to enter into and perform its obligations (including, without limitation, the issuance of the New Preferred Shares in accordance with the terms hereof and the reservation and issuance of the New Conversion Shares in accordance with the terms of the New Certificate of Designations) under this Agreement, the New Certificate of Designations and each of the other agreements and certificates entered into by the parties hereto in connection with the transactions contemplated by this Agreement (collectively, the “交易所文件”). The execution and delivery of the Exchange Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the New Preferred Shares, have been duly authorized by the Board of Directors of the Company and, other than such filings required under applicable securities or “Blue Sky” laws of the states of the United States (the “必要的批准”) and no further filing, consent, or authorization is required by the Company or of its Board of Directors or its shareholders. This Agreement and the other Exchange Documents have been duly executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(c)Issuance of New Preferred Shares. The issuance of the New Preferred Shares are duly authorized and, upon issuance in accordance with the terms of this Agreement, the New Preferred Shares shall be validly issued, fully paid and non-
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assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively “留置权根据本协议将新优先股转换时,其他交换文件,包括但不限于新设计说明书,以及主要市场的规则,发行给持有人的普通股,在发行时将被有效发行,全额支付且无需追溯收费,并且不受与发行有关的所有先决购买权或类似权利或留置权的限制,持有人有权享有普通股持有人应享有的所有权利。假设持有人在此包含的陈述和保证的准确性,则公司向持有人发行新优先股的行为不受1933年法案注册的豁免。截至本协议日期,公司应从其正式授权的股本中至少保留不低于所需储备金额(以下定义)以发行根据新设计说明书发行的新转股股份。
(j)Acknowledgment Regarding Holder’s Acquisition of New Securities. The Company acknowledges and agrees that the Holder is acting solely in the capacity of an arm’s length purchaser with respect to the Exchange Documents and the transactions contemplated hereby and thereby and that the Holder is not (i) an officer or director of the Company or any of its Subsidiaries, (ii) to its knowledge, an “affiliate” (as defined in Rule 144 promulgated under the 1933 Act (or a successor rule thereto) (collectively, “规则144”)) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the 1934 Act). The Company further acknowledges that the Holder is not acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Exchange Documents and the transactions contemplated hereby and thereby, and any advice given by the Holder or any of its representatives or agents in connection with the Exchange Documents and the transactions contemplated hereby and thereby is merely incidental to the Holder’s purchase of the New Securities. The Company further represents to the Holder that the Company’s and each Subsidiary’s decision to enter into the Exchange Documents to which it is a party has been based solely on the independent evaluation by the Company, each Subsidiary and their respective representatives.
(k)No Placement Agent. Neither the Company nor any of its Subsidiaries has engaged any placement agent or other agent in connection with the offer or sale of the New Securities. The Company shall pay, and hold the Holder harmless against, any
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liability, loss or expense (including, without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such claim.
of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles (“通用会计原则(GAAP)”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). The reserves, if any, established by the Company or the lack of reserves, if applicable, are reasonable based upon facts and circumstances known by the Company on the date hereof and there are no loss contingencies that are required to be accrued by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards Board which are not provided for by the Company in its financial statements or otherwise. No other information provided by or on behalf of the Company to any of the Holders which is not included in the SEC Documents (including, without limitation, information in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Company is not currently contemplating to amend or restate any of the financial statements (including, without limitation, any notes or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the “基本报表”), nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financial Statements to be in compliance with GAAP and the rules and regulations of the SEC. The Company has not been informed by its independent accountants that they recommend that the Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.
(p)没有某些变化除非另有规定,否则不得如此设置。 Schedule 5(l), since the date of the Company’s most recent audited financial statements contained in a Form 10-k, there has been no material adverse change and no material adverse development in the business, assets, liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries. Since the date of the Company’s most recent audited financial statements contained in a Form 10-k, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, outside of the ordinary course of
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business or (iii) made any capital expenditures, individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up.
(vii)现有的证券;债务. Except as set forth in the SEC Documents: (A) none of the Company’s or any Subsidiary’s shares, interests or capital stock is subject to preemptive rights or any other similar rights or Liens suffered or permitted by the Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares, interests or capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries; (C) except as set forth on Schedule 3(r)(iv), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (D) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (E) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the New Securities; and (F) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
(viii)组织文件. The SEC Documents disclose true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “公司章程”),以及公司的公司章程,根据修正案并自本文件日期起生效(“规则”), and the terms of all Convertible Securities and the material rights of the holders thereof in respect thereto.
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(w)债务和其他合同. Neither the Company nor any of its Subsidiaries, except as set forth in the SEC Documents or on Schedule 5(s), (i) has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (ii) is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) has any financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (iv) is in violation of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers, has or is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. For purposes of this Agreement: (x) “负债“任何人”的指的是,不包括重复的情况下(A)所有借款的负债,(B)作为财产或服务的递延购买价格而发行、承担或承担的所有义务(包括但不限于《美国通用会计准则》下的“资本租赁”)(与以往业务相一致进入的贸易应付款项除外),(C)关于信用证、保函和其他类似工具的偿还或支付义务,(D)所有通过票据、债券、公司债券或类似工具证明的义务,包括为收购财产、资产或企业而产生的通过这种方式产生的义务(即使在违约情况下卖方或银行的权利和救济仅限于收回或出售该财产),(E)根据任何条件销售或其他所有权保留协议创建或产生的所有债务,或者作为融资而产生的债务,无论在这种情况下使用此类债务的财产或资产是收购的(即使在违约情况下,卖方或银行根据该协议的权利和救济仅限于收回或出售该财产),(F)根据《美国通用会计准则》连续适用于涵盖的期间的任何租赁或类似安排中的所有货币义务,被分类为资本租赁,(G)所有债务所担保的(或拥有此类债务持有人现有权利,无论是有条件的还是其他方式,以担保)的任何人拥有的或在任何人拥有的任何财产或资产(包括应收账款和合同权益)上的留置权,即使拥有此类资产或财产的人未承担或跟逾支付此类债务的义务,和(H)在关于上述子款(A)到(G)债务或义务的其他人的债务或义务方面所有的担保义务;以及(y)“有条件债务”指的是,对于任何个人,如果任何个人直接或间接承担其他个人的任何债务、租赁、股利或其他义务的所有责任(无论有条件还是其他方式),那么承担此类责任的个人的主要目的或意图,或其主要效果,都是为了向此类责任的受益人提供保证,即此类责任将被支付或清偿,或将遵守与之相关的任何协议,或将
(ab)指公司的专利、专利申请、商标、商标申请、服务标志、商号、商业秘密、发明、版权、许可证和其他知识产权和类似权利。公司及其各个子公司拥有或拥有足够的权利或许可证来使用所有商标、商号、服务标记、服务标记注册、服务名称、原创作品、专利、专利权、版权、发明、许可证、批准、政府授权、商业秘密和其他知识产权以及所有申请和注册(以下简称“指公司的专利、专利申请、商标、商标申请、服务标志、商号、商业秘密、发明、版权、许可证和其他知识产权和类似权利。”) necessary to conduct their respective businesses as now conducted and presently proposed to be conducted. The Company does not have any
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knowledge of any infringement by the Company or its Subsidiaries of Intellectual Property Rights of others. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or any of its Subsidiaries, being threatened, against the Company or any of its Subsidiaries regarding its Intellectual Property Rights. Except as set forth on Schedule 5(x), neither the Company nor any of its Subsidiaries is aware of any facts or circumstances which might give rise to any of the foregoing infringements or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights.
(ac)环保母基. (i) The Company and its Subsidiaries (A) are in compliance with any and all Environmental Laws (as defined below), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (A), (B) and (C), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “环保母基“污染或保护人类健康或环境的所有联邦、州、地方或外国法律(包括但不限于周围空气、地表水、地下水、地表或地下地层),包括但不限于涉及化学物质、污染物、污染物质或有毒或危险物质或废物的排放、排放、释放或威胁释放的法律(统称“危险物质”传入环境或否供其他相关即刻发展处理分配使用处理存储轨送或处理即批料话航方裁判请求或求信出方裁判请求或求信出杂造动作信号或通知供其他
(iv) (iv) None of the Real Properties are on any federal or state “Superfund” list or Liability Information System (“CERCLIS”) list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related Liens.
(ad)税收状况. The Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no basis for any such claim. The Company is not operated in such a manner as to qualify as a passive foreign investment company, as defined in Section 1297 of the Code.
(在)《联邦电力法》. None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility” under the Federal Power Act, as amended.
(澳)网络安全概念. The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT系统”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants that would reasonably be expected to have a Material Adverse Effect on the Company’s business. The Company and its Subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all It Systems and data, including “Personal Data,” used in connection with their businesses. “个人数据“个人资料”指(i)自然人的姓名、街道地址、电话号码、电子邮件地址、照片、社会安全号码或纳税识别号码、驾驶执照号码、护照号码、信用卡号码、银行信息、客户或账户号码;(ii)在《联邦贸易委员会法》修订后,符合“个人身份识别信息”的任何信息;(iii)欧盟一般数据保护条例(“EU 2016/679”)定义的“个人数据”;(iv)符合《1996年健康保险便携和责任法案》通过《健康信息技术促进经济和临床健康法案》修订的“受保护健康信息”的任何信息;以及(v)允许识别该自然人或其家庭,或允许收集或分析涉及已识别个人健康或性取向数据的任何其他信息。未发生任何侵犯、违反、中断或未经授权使用或访问同样信息的情况,除非已经无成本或责任或无需通知其他人或这样的情况得到了补救,也没有任何处于内部审查或调查之下的与之相关的事件,除非在这种情况下,无论是单独还是总体上,都不会合理预期产生重大不利影响。公司及其子公司目前符合所有适用法律或法规、所有法院或仲裁员或任何监管机构的裁决、命令、规则和规定、内部政策以及涉及IT系统和个人数据的隐私和安全的合同义务,保护这些IT系统和个人数据免受未经授权的使用、访问、盗用或修改,除非这种情况下,无论是单独还是总体上,都不会合理预期产生重大不利影响。GDPR“)(EU 2016/679);(iv)任何信息,将符合1996年《健康保险可携带性和责任法案》及《健康信息技术促进经济与临床卫生法案》修正案下“受保护健康信息”的条件;以及(v)允许确定该自然人或其家属,或允许收集或分析与确定人员健康或性取向有关的任何数据的任何其他信息。未发生任何数据泄露、违规、中断或未授权使用或访问,除已无实质费用或责任或通知任何其他人的义务,也没有任何内部审核或调查涉及上述事项的情况,除非在每种情况下,无论单独还是合计,都无法合理预期导致重大不利影响。公司及其附属公司目前遵守所有适用的法律或法规和所有法院或仲裁员或任何政府或监管机构的判决、命令、规则和法规、内部政策和与隐私和IT系统安全以及保护这些IT系统和个人数据免受未经授权的使用、访问、盗用或更改相关的合同义务。HIPAA经济与临床卫生法案》的任何信息,包括“);及(v)允许确定该自然人或其家庭,或允许收集或分析已确定人的健康或性取向数据的任何其他信息。截至目前,未发生任何泄漏、违规、中断或未经授权使用或访问同等信息的情况,除已经得到纠正且不会带来重大成本或责任或有义务通知任何其他人或同等情况,也没有任何内部审查或调查涉及同等事宜,除非每种情况都不会出人意料地导致重大不利影响。公司及其子公司目前符合所有适用法律或法规以及所有法院或仲裁机构或政府或监管机构的判决、命令、规则和法规,内部政策以及与IT系统和个人数据的隐私和安全以及保护这些IT系统和个人数据免受未经授权的使用、访问、盗用或修改相关的合同义务。
(音频)符合数据隐私法的规定. The Company and its Subsidiaries are, and at all prior times were, in compliance with all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and its Subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance with, the GDPR (EU 2016/679) (collectively, the “隐私法律”) except in each case, where
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such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. To ensure compliance with the Privacy Laws, the Company and its Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “政策”). The Company and its Subsidiaries have at all times made all disclosures to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.
(g)No Consideration Paid. No commission or other remuneration has been paid by the Holder for soliciting the exchange of the Exchange Note for the New Preferred Shares as contemplated hereby.
7.交易披露. The Company shall, on or before 9:30 a.m., New York City Time, on the first (121世纪医疗改革法案) Business Day after the date of this Agreement, file a Current Report on Form 8-k describing the terms of the transactions contemplated hereby in the form required by the 1934 Act and attaching the Exchange Documents, to the extent they are required to be filed under the 1934 Act, that have not previously been filed with the SEC by the Company (including, without limitation, this Agreement) as exhibits to such filing (including all attachments, the “8-k提交”). From and after the filing of the 8-k Filing, the Company shall have disclosed all material, non-public information (if any) provided up to such time to the Holder by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents. In addition, effective upon the filing of the 8-k Filing, the Company and Holder acknowledge and agree that any and all confidentiality or similar obligations under any agreement with respect to the transactions contemplated by the Exchange Documents or as otherwise disclosed in the 8-k Filing, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any of the Holder or any of their affiliates, on the other hand, shall terminate. Neither the Company, its Subsidiaries nor the Holder shall issue any press releases or any other
18.持股人批准公司应当(x)如果公司已经获得股东的事先书面同意(“股东同意),就获得股东批准(如下所定义)的情况,通知公司股东收到股东同意,通过尽快在本协议日期后但在本协议日期后第四十五(45)个自然日之前(或者如由法院或监管机构延迟,最迟不迟于本协议提供给股东的投票权特别股东大会的信息声明之后的九十(90)个自然日),就此起草并向SEC提供相关信息声明;或者(y)向公司有资格在公司的特别股东大会上表决的每位股东提供(“股东大会应立即召开,并最迟不迟于2024年12月31日举行(“股东会议截止日期”)股东大会代理声明,由集团的费用编制,形式应得到持有人和Kelley Drye & Warren LLP合理认可,并且公司应偿还Kelley Drye & Warren LLP在此事宜中支出的费用,金额不超过$5,000。 代理声明(如有)应征求每一位公司股东在股东大会上为新证券发行(“授权批准将我们的普通股授权数量从1亿股增加到2亿股和发行我们的普通股以符合纳斯达克的股东批准规则。”)提供的决议案的肯定投票,以符合纳斯达克资本市场的规则和法规(不考虑新赋权证明书所规定的任何转换限制)(此肯定批准在此处称为“持股人批准”,以及获得此类股东批准的日期,“股东批准日期”), and the Company shall use its reasonable best efforts to solicit its stockholders’ approval of such resolutions and to cause the Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s reasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional Stockholder Meeting to be held on or prior to March 30, 2025. If, despite the Company’s reasonable best efforts the Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company shall cause an additional Stockholder Meeting to be held semi-annually thereafter until such Stockholder Approval is obtained.
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19.持股期限. For the purposes of Rule 144 and Section 4(a)(1) of the Securities Act (collectively, or such other similar statue, the “Resale Exceptions”), the Company acknowledges that the holding period of the New Preferred Shares (and upon conversion of the New Preferred Shares, the New Conversion Shares) may be tacked onto the holding period of the Exchange Note, and the Company agrees not to take a position contrary to this Section 19. The Company acknowledges and agrees that, subject to the Holder’s representations and warranties contained in Section 4 of this Agreement, New Preferred Shares (and upon conversion of the New Preferred Shares, the New Conversion Shares) shall not be required to bear any restrictive legend and shall be freely transferable by the Holder pursuant to and in accordance with the Resale Exceptions, provided, for the avoidance of doubt, that the Holder shall not be an affiliate of the Company and shall not have been an affiliate during the 90 days preceding the date of any transfer.
20.进一步保证. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(b) 转让代理说明在本前述日期之日或之前,公司应向其转让代理发出不可撤销的指示(“转让代理”) and, prior to obtaining any subsequent transfer agent, the Company shall issue irrevocable instructions to any subsequent transfer agent, in each case, in a form acceptable to the Holder (the “不可撤销的转让代理指令”) to issue certificates or credit shares to the applicable balance accounts at the Depository Trust Company (“DTC”), registered in the name of the Holder or its respective nominee(s), for the New Conversion Shares in such amounts as specified from time to time by the Holder to the Company upon the conversion of the New Preferred Shares. The Company represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 21(b) will be given by the Company to its Transfer Agent with respect to the New Conversion Shares, and that the New Conversion Shares shall otherwise be freely transferable on the books and records of the Company, as applicable, to the extent provided in this Agreement and the other Exchange Documents. If the Holder effects a sale, assignment or transfer of the New Conversion Shares, subject to applicable laws, the Company shall permit the transfer and shall promptly instruct its Transfer Agent to issue one or more certificates or credit shares to the applicable balance accounts at DTC in
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such name and in such denominations as specified by the Holder to effect such sale万亿.ansfer or assignment. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 21(b) will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section 21(b) that the Holder shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required. The Company shall cause its counsel to issue each legal opinion referred to in the Irrevocable Transfer Agent Instructions to the Transfer Agent as follows: (i) upon each conversion of the New Preferred Shares (unless such issuance is covered by a prior legal opinion previously delivered to the Transfer Agent), and (ii) on each date a registration statement with respect to the issuance or resale of any of the New Conversion Shares is declared effective by the SEC. Any fees (with respect to the Transfer Agent, counsel to the Company or otherwise) associated with the issuance of such opinions or the removal of any legends on any of the New Conversion Shares shall be borne by the Company.
(d) 传奇武器已移除证明新证券的证书在下文第21(c)节中规定的说明文字或其他说明文字(i)在覆盖此类新证券转售的注册声明根据1933年法案有效期间不需要,(ii)在根据再售例外情况出售此类新证券后不需要(假设转让方和受让方均非公司的关联方),(iii)如果此类新证券有资格在再售例外情况下出售、转让或转移(前提是持有人向公司提供有关此类新证券有资格在再售例外情况下出售、转让或转移的合理保证,不得包括持有人律师的意见书),(iv)在与出售、转让或其他转移有关时(除再售例外情况之外),前提是持有人向公司提供持有人律师的意见书,内容需符合一般接受标准,以确保此类新证券的出售、转让或转移可以在1933年法案的适用要求下进行登记(v)如果根据1933年法案的适用要求(包括但不限于控制性司法解释和SEC发布的声明)不需要此类说明文字。如果根据前述要求,对于此类新证券并不需要说明文字,公司应在股东向公司或过户代理(通知公司)交付代表此类新证券的说明文字证书(背书或附带股权转让书,签名已保证,如适用,形式必需以实现重新签发和/或转让的形式),配合本第21(d)节中可能要求的其他股东交付,由股东指示的方式,最迟在交付后一个(1)个交易日内(或根据1934年法案或其他适用法律、规则或法规规定的提前日期,用于结算在股东向公司递交代表此类新证券的说明文字证书之日起发起的交易):(A)在股东或其受让人的DTC通过其托管人系统的存提系统中的账户中记入股东应享有的普通股股票总数,如果公司的过户代理正在参与DTC快速自动证券转让计划,而此类新证券为新换股票,或(B)如果公司的过户代理没有参与DTC快速自动证券转让计划(""快扣”), issue and deliver (via reputable overnight courier) to the Holder, a certificate representing such New Securities that is free from all restrictive and other legends, registered in the name of the Holder or its designee (the date by which such credit is so required to be made to the balance account of the Holder’s or the Holder’s nominee with DTC or such certificate is required to be delivered to the Holder pursuant to the foregoing is referred to herein as the “要求交付日期”, and the date such shares of Common Stock are actually delivered without restrictive legend to the Holder or the Holder’s designee with DTC, as applicable, the “股票交付日期”). The Company shall be responsible for any transfer agent fees or DTC fees with respect to any issuance of New Securities or the removal of any legends with respect to any New Securities in accordance herewith.
(e)Failure to Timely Deliver; Buy-In如果公司未能无论出于何种原因或无原因向持有人(或其指定人)在要求的交付日期之前发行和交付(或导致发货),如果托管代理没有参与
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FASt,证书的数量,以及在公司股份登记簿上注册这些新转换股份的持有人有权利,并且,如果托管代理参与FASt,将合格的新转换股份的数量存放在持有人或持有人指定人的DTC账户中,以便按照上述第21(d)条规定由持有人提交以撤销标签(“所有板块”),则,除了持有人可行的所有其他救济措施,公司应按照以下条款向持有人每天支付现金,即股票交付日期之后的每一天以及在此类交付失败期间,其货币相当于(A)在要求的交付日期之前,公司股票的数量之和未发给持有人且持有人有权利的,和(B)任何持有人以书面形式选定的股票的交易价格,该价格在由持有人将适用的新转换股份交付给公司之日开始,并在适用的股票交付日期结束之日的任何时候生效。此外,除了上述情况外,如果在要求的交付日期之前,如果托管代理没有参与FASt,公司未能向持有人发行并交付证书,并在公司的股份登记簿上登记这些公司股票的股票,或者,如果托管代理参与FASt,将合格的股票数量 存放在持有人或持有人指定人的DTC账户中,这些股票数量由持有人根据上述第21(d)条规定提交以便撤销标签,并且如果在交易日之后持有人获得(在公开市场交易,股票贷款或其他方式获得)与公司根据该交付失败未向持有人提供的与该交付失败有关的股票对应的股票的全部或部分数量公司应向持有人支付现金买入”), then the Company shall, within one (1) Trading Day after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions, stock loan costs and other out-of-pocket expenses, if any, for the shares of Common Stock so acquired) (the “购买价”), at which point the Company’s obligation to so deliver such certificate or credit the Holder’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to the Holder a certificate or certificates or credit the balance account of the Holder or the Holder’s designee with DTC representing such number of shares of Common Stock that would have been so delivered if the Company timely complied with its obligations hereunder and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of New Conversion Shares that the Company was required to deliver to the Holder by the Required Delivery Date multiplied by (B) the lowest Closing Sale Price (as defined in the New Certificate of Designations) of the Common Stock on any Trading Day during the period commencing on the date of the delivery by the Holder to the Company of the applicable New Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Delivery Failure, this Section 21(e) shall not apply to the
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applicable Holder the extent the Company has already paid such amounts in full to the Holder with respect to such Delivery Failure pursuant to the analogous sections of the New Certificate of Designations.
根据公司董事会明确授予的权力(“董事会”)以及公司的章程,经修订(“公司章程”),董事会于2024年__月__日通过以下决议,创立了一系列董事会”)根据公司章程修正案(以下简称“公司章程”), and Section 151(g) of the DGCL, the Board on ______, 20___ adopted the following resolution determining it desirable and in the best interests of the Company and its stockholders for the Company to create a series of [ ] ([ ]) shares of preferred stock designated as “A系列可转换优先股”, none of which shares have been issued as of the date hereof, to be issued pursuant to the Exchange Agreement (as defined in below), in accordance with the terms of the Exchange Agreement:
RESOLVED, that pursuant to the authority vested in the Board, in accordance with the provisions of the Certificate of Incorporation, a series of preferred stock, par value $0.0001 per share, of the Company be and hereby is created pursuant to this certificate of designations (this “Series AAA Preferred Stock”), and that the designation and number of shares established pursuant hereto and the voting and other powers, preferences and relative, participating, optional or other rights of the shares of such series and the qualifications, limitations and restrictions thereof are as follows:
Trading Days后,持有人应向全国知名隔夜递送服务交还任何已转换的优先股原始证书,如有的话(“优先股份证书根据上述转换(或者关于优先股因遗失、盗窃或毁坏而进行的赔偿承诺,如第18(b)条规定)。在收到转换通知的日期,公司将通过电子邮件发送确认和声明的确认,以确定普通股是否可以根据1933年法案第144条规则或第4(a)(1)条,或者有效并可供使用的注册声明进行转售,表格附上如下所示。 展品II收到此类转换通知的日期,公司应将收到的转换通知确认发送至持有人和过户代理,此确认应构成指示给过户代理根据本书中所述条款处理此类转换通知。在每次公司收到转换通知之日之前的第一个(第1)交易日(或根据1934年法案或其他适用法律、规则或法规对应的转换日期的交易结算较早的日期)之前(“普通股交付最后期限”)之前,公司应(1)在过户代理参与证券存管公司(“DTC在DTCC的快速自动证券转移计划(以下简称"FAST")下,转让代理机构应向股东身份证明转换本票据应获得的普通股的总数,将其记入股东或其指定人在DTCC的存取保管系统中的余额账户,或(2)如果转让代理机构未参与FAST,应根据股东的要求,通过信誉良好的隔夜快递向指定在转换通知中注明地址交付证明书,该证明书以股东或其指定人名义注册,用于转换时应按此获得的普通股的数量。快扣”) and such shares of Common Stock (i) (A) may then be sold by the applicable Holder pursuant to an available and effective registration statement and (B) such Holder provides such documentation or other information evidencing the sale of the shares of Common Stock as the Company, the Transfer Agent or legal counsel to the Company shall reasonably request (which, for the avoidance of doubt, shall not include the requirement of a medallion guarantee or a legal opinion) or (ii) may be sold by such Holder pursuant to Rule 144 of the 1933 Act, as applicable, including the requirements under Rule 144(i) or Section 4(a)(1) of the 1933 Act (the “Resale Eligibility Conditions”), credit such aggregate number of Conversion Shares to which such Holder shall be entitled pursuant to such conversion to such Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (2) if the Transfer Agent is not participating in FASt or the Resale Eligibility Conditions are not satisfied, upon the request of such Holder, issue and deliver (via reputable overnight courier) to the address as specified in such Conversion Notice, a certificate, registered in the name of such Holder or its designee, for the number of Conversion Shares to which such Holder shall be entitled. If the number of Preferred Shares represented by the Preferred Share Certificate(s) submitted for conversion
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pursuant to Section 4(c)(ii) is greater than the number of Preferred Shares being converted, then the Company shall, as soon as practicable and in no event later than two (2) Trading Days after receipt of the Preferred Share Certificate(s) and at its own expense, issue and mail to such Holder (or its designee) by overnight courier service a new Preferred Share Certificate or a new Book-Entry (in either case, in accordance with Section 18(d)) representing the number of Preferred Shares not converted. The Person or Persons entitled to receive the Conversion Shares issuable upon a conversion of Preferred Shares shall be treated for all purposes as the record holder or holders of such Conversion Shares on the Conversion Date; provided, that such Person shall be deemed to have waived any voting rights of any such Conversion Shares that may arise during the period commencing on such Conversion Date, through, and including, such applicable Share Delivery Deadline, as necessary, such that the aggregate voting rights of any Common Stock (including such Conversion Shares) beneficially owned by such Person and/or any of its Attribution Parties, collectively, on any such date of determination shall not exceed the Maximum Percentage (as defined below) as a result of any such conversion of such applicable Preferred Shares with respect thereto. Notwithstanding the foregoing, if a Holder delivers a Conversion Notice to the Company prior to the date of issuance of Preferred Shares to such Holder, whereby such Holder elects to convert such Preferred Shares pursuant to such Conversion Notice, the Share Delivery Deadline with respect to any such Conversion Notice shall be the later of (x) the date of issuance of such Preferred Shares and (y) the first (1st) Trading Day after the date of such Conversion Notice.
公司未能及时转换. If the Company shall fail, for any reason or for no reason, on or prior to the applicable Share Delivery Deadline, if the Transfer Agent is not participating in FASt or the Resale Eligibility Conditions are not satisfied, to issue and deliver to such Holder (or its designee) a certificate for the number of Conversion Shares to which such Holder is entitled and register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in FASt and the Resale Eligibility Conditions are satisfied, to credit such Holder’s or its designee’s balance account with DTC for such number of Conversion Shares to which such Holder is entitled upon such Holder’s conversion of any Conversion Amount (as the case may be) (each, a “转换失败”), and if on or after such Share Delivery Deadline such Holder acquires (in an open market transaction, stock loan or otherwise) shares of Common Stock corresponding to all or any portion of the number of Conversion Shares issuable upon such conversion that such Holder is entitled to receive from the Company and has not received from the Company in connection with such Conversion Failure (a “买入”), then, in addition to all other remedies available to such Holder, the Company shall, within one (1) Business Day after receipt of
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such Holder’s request and in such Holder’s discretion, either: (I) pay cash to such Holder in an amount equal to such Holder’s total purchase price (including brokerage commissions, stock loan costs and other out-of-pocket expenses, if any) for the shares of Common Stock so acquired (including, without limitation, by any other Person in respect, or on behalf, of such Holder) (the “购买价在这种情况下,公司要发行和交付这种证书(和发行这种转换股份),或者将这种证书发行到这种股东或股东指定代表的余额账户,并向DTC发行这种股份的数量,这种股东在此转换中有权获得的转换股份的数量,将终止,或者迅速履行其发行和交付这种证书或证书的义务,代表这种股份的余额账户的股东或股东的指定代表,申请DTC发行这种代表的证书或代表股份,这种股东在此转换下有权获得的转换股份数目(视情况而定),并支付现金给这种股东,金额相当于回购价超过普通股的最低收盘价。销售日期(期间从适用的转换通知日期开始,直到本条款(II)下的发行和支付日期结束)之间的普通股份购买价与(x)乘以普通股份数量的乘积的高度乘(y)普通股份上的最低收盘价。在任何交易日期间结束的第五个交易日后,这些器官开始累积)的差额,“ 3.公司的契约。)。 除上述情况外,如果在股票交付截止日期或之前,过户代理未参与FASt或未满足复售资格条件,则公司将无法向该股东(或其指定代表)发行和交付证书,并注册该转换股份在公司的股份登记簿上,或如果过户代理参与FASt且复售资格条件已满足,则过户代理将无法向该股东的余额账户或股东的指定代表申请DTC 发行这种股份的数量,这种股东在此转换下有权获得或根据公司根据下面的条款(ii)的义务,那么,除了该股东可以获得的所有其他救济措施之外,(X)公司应该向该股东支付,现金作为清算损害赔偿,而不是罚款,每1,000美元的特许股份的转换金额,每个交易日10美元(从第二个交易日增加到每个交易日的20美元,并从第五个交易日开始增加到每个交易日的40美元增加)在股份交付截止日期之后的每个交易日,直到交付这种转换股份或持有人撤销此转换或(Y)这种持有人,向公司发出书面通知,可以废除与之相关的转换通知,并保留或返还,视情况而定,未转换的所有或部分该等优先股份,已转换而未按照此类转换通知进行转换的部分; 提供,撤销转换通知不得影响公司在本第4条款(c)(ii)或其他任何日期前应根据该通知日期事先应付款项。本协议中未规定的其他条款。限制
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Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Conversion Shares (or to electronically deliver such Conversion Shares) upon the conversion of the Preferred Shares as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Conversion Failure, this Section 4(c)(ii) shall not apply to a Holder to the extent the Company has already paid such amounts in full to such Holder with respect to such Conversion Failure pursuant to the analogous sections of the Exchange Agreement.
登记;记账分户. At the time of issuance of any Preferred Shares hereunder, the applicable Holder may, by written request (including by electronic-mail) to the Company, elect to receive such Preferred Shares in the form of one or more Preferred Share Certificates or in Book-Entry form. The Company (or the Transfer Agent, as custodian for the Preferred Shares) shall maintain a register (the “注册”) for the recordation of the names and addresses of the Holders of each Preferred Share and the Stated Value of the Preferred Shares and whether the Preferred Shares are held by such Holder in Preferred Share Certificates or in Book-Entry form (the “注册优先股”). The entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Company and each Holder of the Preferred Shares shall treat each Person whose name is recorded in the Register as the owner of a Preferred Share for all purposes (including, without limitation, the right to receive payments and Dividends hereunder) notwithstanding notice to the contrary. A Registered Preferred Share may be assigned, transferred or sold only by registration of such assignment or sale on the Register. Upon its receipt of a written request to assign, transfer or sell one or more Registered Preferred Shares by such Holder thereof, the Company shall record the information contained therein in the Register and issue one or more new Registered Preferred Shares in the same aggregate Stated Value as the Stated Value of the surrendered Registered Preferred Shares to the designated assignee or transferee pursuant to Section 18, provided that if the Company does not so record an assignment, transfer or sale (as the case may be) of such Registered Preferred Shares within two (2) Business Days of such a request, then the Register shall be automatically deemed updated to reflect such assignment, transfer or sale (as the case may be). Notwithstanding anything to the contrary set forth in this Section 4, following conversion of any Preferred Shares in accordance with the terms hereof, the applicable Holder shall not be required to physically surrender such Preferred Shares held in the form of a Preferred Share Certificate to the Company unless (A) the full or remaining number of Preferred Shares represented by the applicable Preferred Share Certificate are being converted (in which event such certificate(s) shall be delivered to the Company as contemplated by this Section 4(c)(ii)) or (B) such Holder has provided the Company with prior written notice
1.按比例换算转换;纠纷. In the event that the Company receives a Conversion Notice from more than one Holder for the same Conversion Date and the Company can convert some, but not all, of such Preferred Shares submitted for conversion, the Company shall convert from each Holder electing to
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have Preferred Shares converted on such date a pro rata amount of such Holder’s Preferred Shares submitted for conversion on such date based on the number of Preferred Shares submitted for conversion on such date by such Holder relative to the aggregate number of Preferred Shares submitted for conversion on such date. In the event of a dispute as to the number of Conversion Shares issuable to a Holder in connection with a conversion of Preferred Shares, the Company shall issue to such Holder the number of Conversion Shares not in dispute and resolve such dispute in accordance with Section 23. If a Conversion Notice delivered to the Company would result in a breach of Section 4(d) below, and the applicable Holder does not elect in writing to withdraw, in whole, such Conversion Notice, the Company shall hold such Conversion Notice in abeyance until such time as such Conversion Notice may be satisfied without violating Section 4(d) below (with such calculations thereunder made as of the date such Conversion Notice was initially delivered to the Company).
B.Limitation on Beneficial Ownership
1.类别的受益所有权. The Company shall not effect the conversion of any of the Preferred Shares held by a Holder, and such Holder shall not have the right to convert any of the Preferred Shares held by such Holder pursuant to the terms and conditions of this Certificate of Designations and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 9.99% (the “最大百分比”) of the shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder and the other Attribution Parties shall include the number of shares of Common Stock held by such Holder and all other Attribution Parties 加上 按照正在作出这种判定的相关句子中优先股可转换成普通股的数量进行计算,但不包括(A)持有人或其他归属方持有的未转换优先股的剩余部分可转换成普通股的数量,以及(B)持有人或其他归属方持有的受限于本第4(d)节所含限制类似的其他本公司证券(包括但不限于可转换债券、可转换优先股或认股权证,包括优先股)未行使或未转换部分的可转换或行使数量。根据本第4(d)节规定,持有人和/或其他归属方有权行使、或按规定转换,应计算其他本公司证券未行使或未转换部分。顺便提一句,最大比例的计算应考虑同时行使和/或转换其持有并/或任何其他归属方持有的其他本公司证券未行使或未转换部分时,要符合的最大比例的计算。对于本第4(d)节而言,利益所有权应根据1934年法案第13(d)节的规定进行计算。
3.发生违约事件后,每个持有人可以选择按“备用转换价格”将8月票据转换为我们的普通股,备用转换价格等于以下最低值之一:。根据第4(d)条款,在任何时候,根据任何持有人的选择,该持有人可以转换(各自为“替代自选转换”,以及此类替代自选转换的日期,“替代自选转换日期)全部或部分的优先股转换为公司的普通股(依照本第4(e)(i)条的规定而转换的可转换优先股份的总和,称为“Alternate Optional Conversion Amount”) at the Alternate Conversion Price (each, an “发生违约事件后,每个持有人可以选择按“备用转换价格”将8月票据转换为我们的普通股,备用转换价格等于以下最低值之一:”).
4.触发事件的备选转换价值. Subject to Section 4(d), at any time after the earlier of a Holder’s receipt of a Triggering Event Notice (as defined below) and such Holder becoming aware of a Triggering Event (such earlier date, the “备用换股权开始日期”),并在(以较晚的日期为准,即“触发事件权利到期日期”)结束备用换股权到期日期”,每一个这样的时间段称为“替代换股权利期”)至第二十(20th)在触发事件得到纠正的日期后的交易日,或者(x)和持有人接收到包括(I)适用触发事件的合理描述、(II)在公司合理意见下,触发事件是否能够被纠正,以及如适用,公司纠正触发事件的任何现有计划的合理描述,以及(III)关于触发事件发生日期的认证,及如在触发事件通知日期或之前纠正触发事件的日期,合适的替代换股权利到期日期,持有人可以选择自行选择,通过向公司递交换股通知书(任何此类换股通知书的日期,各称“触发事件换股日期”,连同每个替代自愿换股日期,各自称为“备用转换日期”), convert all, or any number of Preferred Shares (such Conversion Amount of the Preferred Shares to be converted pursuant to this Section 4(e)(ii), the “Triggering Event Conversion Amount” and together with each Alternate Optional Conversion Amount, each, an “备选转换金额”) into shares of Common Stock at the Alternate Conversion Price (each, a “Triggering Event Conversion”, and together with each Alternate Optional Conversion, each an “可选转换”).
公司和/或任何子公司,无论是单独还是综合,都未能支付超过1,000,000美元的任何债务相关款项,支付时机或任何适用宽限期内未支付给任何第三方(但在只涉及无抵押债务时,公司和/或该子公司(视情况而定)善意通过适当程序提出争议的支付,并就其支付设立了适当准备金以符合GAAP的方式),或者违反或违反任何款项在逾1,000,000美元范围内的协议,该违反或违反允许另一方宣布违约或加速根据该协议应付的金额,或 (ii) 存在应在公司或任何子公司约束下的任何协议下造成违约事件或违约事件的任何其他状况或事件,该违约事件或违约事件可能对公司或其任何子公司的业务,资产,经营情况(包括结果),责任,财产,状况(包括财务
更改控制通知;控制变更选举通知在实施控制权变更的二十(20)个交易日前或达成控制权变更协议的公开公告之日与实施控制权变更的十(10)个交易日前(“变更控制权日期公司应当通过电子邮件和隔夜快递向每位持有人发送书面通知(“控制权变更 提供姓名全称、身份证号或公司注册号、地址、白天的电话号码以及代表、代理人和助手的信息。 助手的数量不得超过两个。为便于进入年度股东大会,通知应在适当的情况下附有授权书、注册证书和其他授权文件。)。自持有人收到控制权变更通知或获悉控制权变更且未根据上述句子按规定将控制权变更通知发送给该持有人(如适用)之后,以及在控制权变更后的二十(20)个交易日内,包括但不限于(A)实施该控制权变更的日期,(B)收到该控制权变更通知的日期,或(C)公告该控制权变更的日期,持有人可以通过发出书面通知要求(“ 控制变更选举通知”) to the Company (which Change of Control Election Notice shall indicate the number of Preferred Shares subject to such election), to have the Company exchange such Holder’s Preferred Shares designated in such Change of Control Election Notice for consideration equal to the Change of Control Election Price (as defined below), to be satisfied at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a “考虑选举”), in either (I) rights (with a beneficial ownership limitation in the form of Section 4(d) hereof, 必要时修改竞争性部门权利”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the
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Required Holders, into such Corporate Event Consideration (as defined below) applicable to such Change of Control equal in value to the Change of Control Election Price (as determined with the fair market value of the aggregate number of Successor Shares (as defined below) issuable upon conversion of the Rights to be determined in increments of 10% (or such greater percentage as the applicable Holder may notify the Company from time to time) of the portion of the Change of Control Election Price attributable to such Successor Shares (the “接替股价值增量根据首次继任者股票价值增量的70%决定代表权益的行权股票数量,该增量基于代表权益发行当天和之后连续九个(9)交易日的继任者股票成交均价(VWAP),在每种情况下,根据相应交易日生效的继任者股票成交均价确定的额外继任者股票数量将随权益行权而发行,此类十(10)个交易日期间从权益发行日起算并包括在内,称为“权利衡量期”)或(II)以现金支付;但前提是,如果公司收购事件对价包括资本股或其他权益利益(“继任者股票”)位于非符合条件市场上市的实体或在公司收购事件的完成日期前各二十(20)个交易日中的适用继任者股票的每日成交量少于所有持有人完全转换适用权益后所应发行的继任者股票总量(不考虑其中的任何转换限制,在权益发行日行权且假设权益测量期内每个交易日的继任者股票成交均价为在进行公司收购事件时结束的前一个交易日的成交均价)。公司将在进行收购事件完成时间前至少二十(20)个交易日向每位持有人书面通知每次对价选项。此类金额的支付或权益的交付,根据情况,将由公司(或按公司要求)在提出请求后第二(2)个交易日且在收购事件完成日(或者关于有权持有普通股的任何权益,若适用,最初有资格接收与该持有人普通股相关的收购事件对价的股东们在进行收购事件完成时的稍晚时间)之后支付给每位持有人。根据本第6(b)款包括在权益内的任何收购事件对价(如有) 平价 有关公司活动偿付给普通股股东的考虑,公司不得在未或在此之前未按照此处规定向持有人支付任何公司活动考虑,未支付适用的“换股权”现金付款,如果有的话,在有关的控制变更事宜中会优先支付给公司的所有其他股东。 尽管本第6(b)款中有悖之处,但受第4(d)条约束,直到适用的控制变更选举价格已全部支付给适用的持有人以现金或按照公司活动考虑,按照
购买权. In addition to any adjustments pursuant to Section 8 and Section 15 below, if at any time the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to all or substantially all of the record holders of any class of Common Stock (the “购买权”), then each Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such Holder could have acquired if such Holder had held the number of shares of Common Stock acquirable upon complete conversion of all the Preferred Shares (without taking into account any limitations or restrictions on the convertibility of the Preferred Shares and assuming for such purpose that all the Preferred Shares were converted at the Alternate Conversion Price as of the applicable record date) held by such Holder immediately prior to the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights; provided, however, to the extent that such Holder’s right to participate in any such Purchase Right would result in such Holder and the other Attribution Parties exceeding the Maximum Percentage, then such Holder shall not be entitled to participate in such Purchase Right to such extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent of any such excess) and such Purchase Right to such extent shall be held in abeyance (and, if such Purchase Right has an expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance,
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if applicable) for the benefit of such Holder until such time or times, if ever, as its right thereto would not result in such Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times such Holder shall be granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance (and, if such Purchase Right has an expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance, if applicable)) to the same extent as if there had been no such limitation.
其他企业活动. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or in exchange for shares of Common Stock (a “公司行动”), the Company shall make appropriate provision to ensure that each Holder will thereafter have the right, at such Holder’s option, to receive upon a conversion of all the Preferred Shares held by such Holder (i) such securities or other assets (the “企业事件考虑”) to which such Holder would have been entitled with respect to such shares of Common Stock had such shares of Common Stock been held by such Holder upon the consummation of such Corporate Event (without taking into account any limitations or restrictions on the convertibility of the Preferred Shares set forth in this Certificate of Designations) or (ii) in lieu of the shares of Common Stock otherwise receivable upon such conversion, such securities or other assets received by the holders of shares of Common Stock in connection with the consummation of such Corporate Event in such amounts as such Holder would have been entitled to receive had the Preferred Shares held by such Holder initially been issued with conversion rights for the form of such consideration (as opposed to shares of Common Stock) at a conversion rate for such consideration commensurate with the Conversion Rate of an Alternate Conversion. Provision made pursuant the preceding sentence shall be in a form and substance reasonably satisfactory to the Required Holders. The provisions of this Section 7 shall apply similarly and equally to successive Corporate Events and shall be applied without regard to any limitations on the conversion or redemption of the Preferred Shares set forth in this Certificate of Designations.
发行其他证券时的权利.
C.Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Exchange Date the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 8(a) is deemed to have granted, issued or sold, any shares of Common Stock (including the granting, issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold) for a consideration per share (the “新发行价格在这种授予、发行或出售或被视为授予、发行或出售前,不能低于当时有效的换股价格
F.计算。 本第8条下的所有计算均应四舍五入至最接近的分或最接近的1/100。th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.
G.Voluntary Adjustment by Company. Subject to the rules and regulations of the Principal Market, the Company may at any time any Preferred Shares remain outstanding, with the prior written consent of the Required Holder, reduce the then current Conversion Price to any amount and for any period of time deemed appropriate by the Board.
H.Adjustments. If on either of (i) the thirtieth (30th) calendar day after the Initial Issuance Date or (ii) the sixtieth (60th) calendar day after the Initial Issuance Date, as applicable, (each, an “调整日期”), the Conversion Price then in effect is
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greater than the greater of (A) the Floor Price and (B) the Market Price then in effect (the “调整价格”), on the Adjustment Date the Conversion Price shall automatically lower to the Adjustment Price.
I.Exchange Right. Notwithstanding anything herein to the contrary, if the Company or any of its Subsidiaries consummates any Subsequent Placement (other than with respect to Excluded Securities), and a Holder elects in writing to the Company to participate in such Subsequent Placement, each such Holder may, at the option of such Holder as elected in writing to the Company, exchange all, or any part, of the Preferred Shares of such Holder into the securities in such Subsequent Placement (with the aggregate amount of such securities to be issued in such exchange equal to such aggregate amount of such securities with a purchase price valued at 125% of the Conversion Amount of the Preferred Shares delivered by such Holder in exchange therefor).
Redemption at the Company’s Election. At any time, the Company shall have the right to redeem all, but not less than all, of the Preferred Shares then outstanding (the “公司可选择性赎回金额在公司自行可选赎回日(如下所定义)进行赎回(称为“公司可选择性赎回”)。 根据本第9条规定可赎回的优先股应以现金方式由公司赎回,价格为(“公司自愿赎回价格”),相当于(i)公司自行可选赎回日应赎回的转换金额以及(ii)乘积的比值(1)与公司自行可选赎回日赎回的转换金额相关的转换率乘以(2)公共股在自行可选赎回通知日期前一日起至公司根据本第9条所需做出的全部支付结束前一个交易日的任何交易日内的最高收盘价。 公司可以通过电子邮件和隔夜快递向所有,但不少于所有,持有人行使根据本第9条要求赎回的权利(“公司自愿赎回通知”),所有持有人收到该通知的日期被称为“公司自愿赎回通知日期公司选择性赎回通知应为不可撤销;但公司选择性赎回通知可以以再融资交易或私有化交易的完成为条件。公司选择性赎回通知应(x)规定公司选择性赎回将发生的日期(“公司自愿赎回日期)这个日期不得早于公司选择性赎回通知日期之后的十(10)个交易日,也不得晚于二十(20)个交易日,而且(y)规定符合本第9节规定的优先股被赎回的总转换金额,以及在公司选择性赎回日期对该股东和所有其他持有优先股的持有人的所有优先股按照本第9节的规定赎回。公司应在适用的公司选择性赎回日期将适用的公司选择性赎回价格以现金支付给每位持有人。尽管本协议中有任何相反规定,在支付公司选择性赎回价格的全额之前,公司选择性赎回金额可以任何
授权股份不足. If, notwithstanding Section 11(a) and not in limitation thereof, at any time while any of the Preferred Shares remain outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon conversion of the Preferred Shares at least a number of shares of Common Stock equal to the Required Reserve Amount (an “授权股份不足”), then the Company shall immediately take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Preferred Shares then outstanding (or deemed outstanding pursuant to Section 11(a) above). Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than seventy-five (75) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized shares of Common Stock and to cause its board of directors to recommend to the stockholders that they approve such proposal (or, if a majority of the voting power then in effect of the capital stock of the Company consents to such increase, in lieu of such proxy
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statement, deliver to the stockholders of the Company an information statement that has been filed with (and either approved by or not subject to comments from) the SEC with respect thereto). Notwithstanding the foregoing, if at any such time of an Authorized Share Failure, the Company is able to obtain the written consent of a majority of the shares of its issued and outstanding shares of Common Stock to approve the increase in the number of authorized shares of Common Stock, the Company may satisfy this obligation by obtaining such consent and submitting for filing with the SEC an Information Statement on Schedule 14C. In the event that the Company is prohibited from issuing shares of Common Stock to a Holder upon any conversion due to the failure by the Company to have sufficient shares of Common Stock available out of the authorized but unissued shares of Common Stock (such unavailable number of shares of Common Stock, the “授权失败股份在向持有人交付此类授权故障股份的代替时,公司应以现金支付,以换取可转换为此类授权故障股份的优先股转换金额的部分,价格相等于以下各项之和:(i)自持有人向公司递交有关此类授权故障股份的转换通知之日起至本条款第11(b)节下发行和支付之日止,任何交易日内Common Stock最高收盘价乘以该数量的授权故障股份及;(ii)在持有人购买(在公开市场交易或其他方式中)股票以满足持有人出售授权故障股份所需的任何经纪佣金和其他费用的情况下,持有人因此而发生的任何费用。 第11(a)节或本第11(b)节中所含内容不得限制公司根据交换协议的任何规定承担的任何义务。
S. 停留、延期和高利贷法律。在法律允许的范围内,公司(A)同意在任何时候不坚持、不主张或以任何方式要求或利用可以影响本特别股权证书条款或履行的任何停留、延期或高利贷法律(无论何时何地出台或生效);并(B)明确放弃了任何此类法律的全部利益和优势,并同意不会通过采取任何这类法律的手段阻碍、延误或阻碍持有人依据本特别股权证书授予的权力,而是允许并容许执行每项权力,就像没有任何此类法律已经生效一样。
V. 独立调查。在任何要求持有人要求的情况下,要么(x)在触发事件已发生且正在持续的任何时候,(y)在经过一定时间或发出通知后将构成触发事件的事件发生,或(z)在任何时间该等持有人合理相信触发事件可能已发生或正在持续的情况下,公司应聘请由公司选定并经该持有人批准的独立、声誉良好的投资银行(该批准不应被不合理搁置、附加或延迟)进行调查,以确定是否存在违反本设计说明书的行为(“独立调查人”). If the Independent Investigator determines that such
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breach of this Certificate of Designations has occurred, the Independent Investigator shall notify the Company of such breach and the Company shall deliver written notice to each Holder of such breach. In connection with such investigation, the Independent Investigator may, during normal business hours, inspect all contracts, books, records, personnel, offices and other facilities and properties of the Company and its Subsidiaries and, to the extent available to the Company after the Company uses reasonable efforts to obtain them, the records of its legal advisors and accountants and any books of account, records, reports and other papers not contractually required of the Company to be confidential or secret, or subject to attorney-client or other evidentiary privilege, and the Independent Investigator may make such copies and inspections thereof as the Independent Investigator may reasonably request. The Company shall furnish the Independent Investigator with such financial and operating data and other information with respect to the business and properties of the Company as the Independent Investigator may reasonably request. The Company shall permit the Independent Investigator to discuss the affairs, finances and accounts of the Company with, and to make proposals and furnish advice with respect thereto to, the Company’s officers, directors, key employees and independent public accountants or any of them (and by this provision the Company authorizes said accountants to discuss with such Independent Investigator the finances and affairs of the Company and any Subsidiaries), all at such reasonable times, upon reasonable notice, and as often as may be reasonably requested.
清算、解散、清盘. In the event of a Liquidation Event, the Holders shall be entitled to receive in cash out of the assets of the Company, whether from capital or from earnings available for distribution to its stockholders (the “在对配发给优先股股东的优先派息的优先性分配和支付方面排在该系列A优先股不如的任何资本股或公司的任何其他较低等级的类别股的持有人之前,A系列股的持有人在公司自愿或被迫清算、解散或清算时有权从公司资产中获得现金,相当于每股A系列股票的0.009美元和应计但未支付的股息(该款项称为“清算资金”),前提是如果清算基金不足以支付持有人的全部债务,则每个持有者将按清算优先权的数量而收到应发给该持有人作为清算优先权的清算基金的百分比。”), before any amount shall be paid to the holders of any of shares of Junior Stock, but pari passu with any Parity Stock then outstanding, an amount per Preferred Share equal to the greater of (A) 125% of the Conversion Amount of such Preferred Share on the date of such payment and (B) the amount per share such Holder would receive if such Holder converted such Preferred Share into Common Stock immediately prior to the date of such payment, provided that if the Liquidation Funds are insufficient to pay the full amount due to the Holders and holders of shares of Parity Stock, then each Holder and each holder of Parity Stock shall receive a percentage of the Liquidation Funds equal to the full amount of Liquidation Funds payable to such Holder and such holder of Parity Stock as a liquidation preference, in accordance with their respective certificate of designations (or equivalent), as a percentage of the full amount of Liquidation Funds payable to all holders of Preferred Shares and all holders of shares of Parity Stock. To the extent necessary, the Company shall cause such actions to be taken by each of its Subsidiaries so as to enable, to the maximum extent permitted by law, the proceeds of a Liquidation Event to be distributed to the Holders in accordance with this Section 14. All the preferential amounts to be paid to the Holders under this Section 14 shall be paid or set apart for payment before the payment or setting apart for payment of any amount for, or the distribution of any Liquidation Funds of the Company to the holders of shares of Junior Stock in connection with a Liquidation Event as to which this Section 14 applies.
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资产分配. In addition to any adjustments pursuant to Section 7 and Section 8, if the Company shall declare or make any dividend or other distributions of its assets (or rights to acquire its assets) to any or all holders of shares of Common Stock, by way of return of capital or otherwise (including without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (the “分布。在根据本收据条款的规定结束本收据所体现的协议之前,托管人将在确定余额之后以某种方式在底定时间向持有人分配或提供有关本美国存托凭证所体现的存入证券的任何现金股利、其他现金分派、股票分派、认购或其他权利或任何其他有关性质的分派,经过托管人在第十九条中描述的费用和支出的扣除或者付款,并扣除任何相关税款; ,不过需要指出,托管人不会分配可能会违反1933年证券法或任何其他适用法律的分配,并且对于任何可能违反此类法律的情况,该人不会收到相应的保证。对于这种情况,托管人可以售出这样的股份、认购或其他权利、证券或其他财产。如果托管人选择不进行任何此类分配,则托管人只需要通知持有人有关其处置的事宜及任何此类销售的收益,而任何以现金形式以外的方式通过托管人收到的任何现金股息或其他分配的,不受本第十二条的限制。托管人可以自行决定不分配任何分销或者认购权,证券或者其他财产在行使时,托管人授权此类发行人可能不得在法律上向任何持有人或者处置此类权利,以及使任何发售此类权利且在托管人处出售这类权利的净收益对这样的持有人可用。任何由托管人出售的认购权、证券或者其他财产的销售可能在托管人认为适当的时间和方式进行,并且在这种情况下,托管人应将在第十九条中描述的费用和支出扣除后分配给持有人该净收益以及在相应的代扣税或其他政府收费中将,。在这种情况下,作为优先股股东的每个持有人将被视为持有完全转换优先股时可获得的普通股数量的分配。 (不考虑对优先股的转换限制或限制,并假定在适用记录日期之前以备选转换价格将优先股转换),如果在拍摄此类分发的日期之前,未拍摄记录,将确定普通股的记录持有人享有此类分配。在每种情况下,该B类股东和/或该B类股东的家庭成员需独立控制在此类帐户、计划或信托中持有的B类普通股实时;, 公司对于以下情况,不应承担责任:根据第10(b)部分书面信息可靠地提供。假设该持有人参与任何此类分配的权利将导致该持有人和其他权责方超过最大百分比,那么该持有人将无权参加该持有人对此类分配的权利,以保持最大百分比的幅度(并且将不享有因此类分配而产生的普通股的所有权权益的结果以及该超额部分的权益),并且保留此类分配的部分以使该持有人受益直到其享有该权益的时间不会导致该持有人和其他权责方超过最大百分比,该时间,如果有的话,该持有人将被授予该分配(并保留类似保留的任何初始分配或任何后续分配上宣布或进行的分配),如同没有此类限制一样。
交流。根据本次指定证书的条款,任何通知、同意书、豁免或其他通信必须书面形式,并将视为在以下最早时间已经送达:(i)当面交付时视为已收到;(ii)通过电子邮件发送时视为已收到(前提是发送的电子邮件被发送方存档(无论是电子形式还是其他形式),发送方没有收到来自收件人电子邮件服务器的自动生成消息,说明该电子邮件无法发送给此收件人);或(iii)使用隔夜快递服务寄出,并指定次日送达,在此期间妥善地址寄给接收方。向公司发送此类通信的邮寄地址和电子邮件地址为:Nauticus Robotics, Inc. 17146 Feathercraft Lane, Suite 450, Webster, Texas 77598, 注意: John Gibson,首席执行官,电子邮件地址:jgibson@nauticusrobotics.com,或者公司在第24(a)条规定的通知期限五(5)天之前以书面通知方式向持有人每位都给出的其他邮寄地址和/或电子邮件地址为准。向任何持有人发送此类通信的邮寄地址和电子邮件地址如载于各持有人签署的交换协议,或者任何持有人根据第24(a)款规定,最迟在变更生效前五(5)天以书面通知方式给公司指定的其他邮寄地址和/或电子邮件地址为准。由收件方确认收到此类通知、同意书、豁免或其他通信(A)确认通知的收件方,(B)由发件方的包含时间、日期和收件人电子邮件的机械或电子生成的电子邮件,或(C)由隔夜快递服务提供的口头确认,将提供在个人服务、通过电子邮件收到或通过隔夜快递服务按照上述第(i)、(ii)或(iii)款的规定收到的反驳证据。
汇率” means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Certificate of Designations, the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation (it being understood and agreed that where an amount is calculated with reference to, or over, a period of time, the date of calculation shall be the final date of such period of time).
AF.Payments. Whenever any payment of cash is to be made by the Company to any Person pursuant to this Certificate of Designations, unless otherwise expressly set forth herein, such payment shall be made in lawful money of the United States of America by wire transfer of immediately available funds pursuant to wire transfer instructions that Holder shall provide to the Company in writing from time to time. Whenever any amount expressed to be due by the terms of this Certificate of Designations is due on any day which is not a Business Day, the same shall instead be due on the next succeeding day which is a Business Day.
放弃通知. To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Certificate of Designations and the Exchange Agreement.
管辖法. This Certificate of Designations shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Certificate of Designations shall be governed by, the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Except as otherwise required by Section 23 above, the Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Wilmington, Delaware, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein (i) shall be deemed or operate to preclude any Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to such Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of such Holder or (ii) shall limit, or shall be deemed or construed to limit, any provision of Section 23 above. 公司和每个持有人在此不可撤销地放弃其可能拥有的权利,并同意不要请求在本协议项下或与本协议有关或由此产生的任何争议的陪审团审判。
B.The Company hereby indemnifies and agrees to hold each Holder and each of their affiliates and their respective officers, directors, employees, agents and advisors (each, an “受保护方”) each Indemnified Party harmless from and against Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 28) paid by any Indemnified Party as a result of any payment made hereunder or from the execution, delivery, registration or enforcement of, or otherwise with respect to, this Preferred Shares or any other Transaction Document, and any liability (including penalties, interest and expenses for nonpayment, late payment or otherwise) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. This indemnification shall be paid within thirty (30) days from the date on
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which such Holder makes written demand therefor, which demand shall identify the nature and amount of such Taxes or Other Taxes.
C.If the Company fails to perform any of its obligations under this Section 28, the Company shall indemnify such Holder for any taxes, interest or penalties that may become payable as a result of any such failure. The obligations of the Company under this Section 28 shall survive the repayment and/or conversion, as applicable, in full of the Preferred Shares and all other amounts payable with respect thereto.
D.If any Indemnified Party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 28 (including by the payment of additional amounts pursuant to this Section 28), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 28 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including taxes) of such Indemnified Party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such Indemnified Party, shall repay to such Indemnified Party the amount paid over pursuant to this paragraph (d) (plus any penalties, interest, or other charges imposed by the relevant Governmental Authority) in the event that such Indemnified Party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (d), in no event will the Indemnified Party be required to pay any amount to an indemnifying party pursuant to this paragraph (d) the payment of which would place the Indemnified Party in a less favorable net after-Tax position than the Indemnified Party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph (d) shall not be construed to require any Indemnified Party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
“附属公司“”或“”相互关联” means, with respect to any Person, any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the 1933 Act.
“备用换股价” means, with respect to any Alternate Conversion that price which shall be the lowest of (i) the applicable Conversion Price as in effect on the applicable Conversion Date of the applicable Alternate Conversion, and (ii) the greater of (x) the Floor Price and (y) 98% of the lowest VWAP of the Common Stock during the ten (10) consecutive Trading Day period ending and including the Trading Day immediately preceding the delivery or deemed delivery of the applicable Conversion Notice (such period, the “备选转换测量期”). All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction that proportionately decreases or increases the Common Stock during such Alternate Conversion Measuring Period.
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“备用转换楼层金额” means an amount equal to the product obtained by multiplying (A) the higher of (I) the highest price that the Common Stock trades at on the Trading Day immediately preceding the relevant Alternate Conversion Date and (II) the applicable Alternate Conversion Price and (B) the difference obtained by subtracting (I) the number of shares of Common Stock delivered (or to be delivered) to such Holder on the applicable Share Delivery Deadline with respect to such Alternate Conversion from (II) the quotient obtained by dividing (x) the applicable Conversion Amount that such Holder has elected to be the subject of the applicable Alternate Conversion, by (y) the applicable Alternate Conversion Price without giving effect to clause (x) of such definition.
“收盘买盘价格”和“收盘股价”对于任何证券来说,作为任何日期的最后收盘买入价和最后收盘交易价,分别是指在主要市场上,按彭博报道的该证券的价格,或者如果主要市场开始以延长营业时间的方式运作且未指定收盘买入价或收盘交易价(根据情况),那么在下午4:00:00之前纽约时间之前彭博报道的该证券的最后买入价或交易价,或者如果主要市场不是该证券的主要证交所或交易市场,则是按彭博报道的该证券所上市或交易的主要证交所或交易市场上的最后收盘买入价或交易价,或者如果前述情况不适用,则在彭博报告的该证券在该证券的电子公告板上用于场外交易的收盘买入价或交易价,或者如果彭博对于该证券未报告收盘买入价或最后交易价,那么该证券的任何做市商的买价或卖价的平均值,或者分别由报道在The Pink Open Market上的该证券的买价或卖价(或者是其职能的类似机构或代理继任者)来报告。如果在任何情况下都不能计算出某一特定日期的证券的收盘买入价或收盘交易价,那么这一证券在该日期的收盘买入价或收盘交易价(请根据具体情况)将是由公司和要求方持有人共同决定的市场公允价值。如果公司和要求方持有人不能就该证券的市场公允价值达成一致意见,那么应按照第23条的程序解决争议。所有这些决定都应适当地调整,在该期间进行的任何股票拆分、股利发放、股票合并、资本重组或类似交易都应进行相应调整。
“权益条件” means, with respect to an given date of determination: (i) on each day during the period beginning thirty calendar days prior to such applicable date of determination and ending on and including such applicable date of determination all shares of Common Stock to be issued in connection with the event requiring this determination, as applicable, in the event requiring this determination at the Dividend Conversion Price then in effect (without regard to any limitations on conversion set forth
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herein)) (each, a “必需最小证券数量”) shall be eligible for sale pursuant to Rule 144 (as defined in the Exchange Agreement) without the need for registration under any applicable federal or state securities laws (in each case, disregarding any limitation on conversion of the Preferred Shares, other issuance of securities with respect to the Preferred Shares) and no Current Public Information Failure exists or is continuing; (ii) on each day during the period beginning thirty calendar days prior to the applicable date of determination and ending on and including the applicable date of determination (the “在股本条件测算期内,我们的普通股在本公司允许的证券交易所或市场上已经上市或指定为报价,并且尚未因交易所或市场暂停交易(除因我们的企业公告而暂停交易不超过两天之外) ,而且不应由交易所或市场威胁到除牌或暂停,或者合理上可能发生除牌或暂停;”), the Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Preferred Shares) is listed or designated for quotation (as applicable) on an Eligible Market and shall not have been suspended from trading on an Eligible Market (other than suspensions of not more than two (2) days and occurring prior to the applicable date of determination due to business announcements by the Company) nor shall delisting or suspension by an Eligible Market have been threatened (with a reasonable prospect of delisting occurring after giving effect to all applicable notice, appeal, compliance and hearing periods) or reasonably likely to occur or pending as evidenced by (A) a writing by such Eligible Market or (B) the Company falling below the minimum listing maintenance requirements of the Eligible Market on which the Common Stock is then listed or designated for quotation, as applicable; (iii) during the Equity Conditions Measuring Period, the Company shall have delivered all shares of Common Stock issuable upon conversion of the Preferred Shares on a timely basis as set forth in Section 4 hereof and all other shares of capital stock required to be delivered by the Company on a timely basis as set forth in the other Transaction Documents; (iv) any shares of Common Stock to be issued in connection with the event requiring determination may be issued in full without violating Section 4(d) hereof; (v) any shares of Common Stock to be issued in connection with the event requiring determination may be issued in full without violating the rules or regulations of the Eligible Market on which the Common Stock is then listed or designated for quotation (as applicable); (vi) on each day during the Equity Conditions Measuring Period, no public announcement of a pending, proposed or intended Fundamental Transaction shall have occurred which has not been abandoned, terminated or consummated; (vii) the Company shall have no knowledge of any fact that would reasonably be expected to cause the applicable Required Minimum Securities Amount of shares of Common Stock issuable in connection with the event requiring such determination to not be eligible for sale pursuant to Rule 144 without the need for registration under any applicable federal or state securities laws (in each case, disregarding any limitation on conversion of the Preferred Shares, other issuance of securities with respect to the Preferred Shares), (viii) none of the Holders shall be in possession of any material, non-public information provided to any of them by the Company, any of its Subsidiaries or any of their respective affiliates, employees, officers, representatives, agents or the like; (ix) on each day during the Equity Conditions Measuring Period, the Company otherwise shall have been in compliance with each, and shall not have breached any representation or warranty in any material respect (other than representations or warranties subject to material adverse effect or materiality, which may
““ VWAP ”表示任何日期上任何证券的美元成交量加权平均价格,在纳斯达克资本市场(或如果纳斯达克资本市场不是该证券的主要交易市场,那么在该证券的主要证券交易所或证券市场上,在该证券上从美国东部时间上午9:30开始,到美国东部时间下午4:00结束,在该证券上由彭博社通过其“VAP”功能报告的美元成交量加权平均价格(设置为9:30开始时间和16:00结束时间);如果上述情况不适用,则为在该证券的场外市场上,该证券的电子公告板在美国东部时间上午9:30开始,到美国东部时间下午4:00,在彭博社报告的美元成交量加权平均价格,或者如果没有任何市场商报告该证券的美元成交量加权平均价格,则该证券市场制造商的最高收盘买入价与最低收盘卖出价的平均值从The Pink Open Market(或类似的机构或代理机构继承其报告价格的功能)或其他方式获得。如果无法计算该日期上该安全的VWAP,则该日期上该安全的VWAP将是我们和债券持有人共同确定的公平市场价值。如果我们和债券持有人无法就该证券的公平市场价值达成一致意见,那么这种争议应根据条款中规定的程序解决。对于所有这些决定应适当调整任何股票股利、股票分割、股票组合、资本重组或其他类似交易的加权平均价格。“”表示(i)ATW Special Situations I LLC或其受让方在持有任何优先股的情况下,或(ii)其他情况下,自该时起持有大多数优先股的持有人。
““VWAP”表示任何日期上任何证券的美元成交量加权平均价格,在纳斯达克资本市场(或如果纳斯达克资本市场不是该证券的主要交易市场,那么在该证券的主要证券交易所或证券市场上,在该证券上从美国东部时间上午9:30开始,到美国东部时间下午4:00结束,在该证券上由彭博社通过其“VAP”功能报告的美元成交量加权平均价格(设置为9:30开始时间和16:00结束时间);如果上述情况不适用,则为在该证券的场外市场上,该证券的电子公告板在美国东部时间上午9:30开始,到美国东部时间下午4:00,在彭博社报告的美元成交量加权平均价格,或者如果没有任何市场商报告该证券的美元成交量加权平均价格,则该证券市场制造商的最高收盘买入价与最低收盘卖出价的平均值从The Pink Open Market(或类似的机构或代理机构继承其报告价格的功能)或其他方式获得。如果无法计算该日期上该安全的VWAP,则该日期上该安全的VWAP将是我们和债券持有人共同确定的公平市场价值。如果我们和债券持有人无法就该证券的公平市场价值达成一致意见,那么这种争议应根据条款中规定的程序解决。对于所有这些决定应适当调整任何股票股利、股票分割、股票组合、资本重组或其他类似交易的加权平均价格。”指的是,对于任何证券,截至任何日期,该证券在主要市场上的美元成交量加权平均价(如果主要市场不是该证券的主要交易市场,则在该证券目前交易的主要证券交易所或证券市场),自纽约时间上午9:30开始,下午4:00结束,由Bloomberg通过其“VAP”功能报告(设定为09:30开始时间和16:00结束时间),或者如果前述情形不适用,该证券在场外市场的美元成交量加权平均价,在电子公告板上该证券上午9:30开始,下午4:00结束,由Bloomberg报告,或者如果Bloomberg对该证券在该时间段内未报告该证券的美元成交量加权平均价,则由The Pink Open Market报告的任何做市商对该证券的最高收盘买价和最低收盘卖价的平均价(或其职能由类似机构或机构继任)。如果无法根据上述任何基础计算该证券在该日期的VWAP,该证券在该日期的VWAP应由公司和所需持有人互相确定的公平市场价确定。 如果公司和所需持有人无法就该证券的公平市场价达成一致意见,那么应根据第23款的程序解决争议。 所有这些决定都应适当调整以适应在该期间内进行的任何股票股利、股票拆分、股票组合、再资本化或其他类似交易。