| | Company’s launch business and (ii) if the Lead Investor informs the Company that it has an interest in acquiring the launch business, enter into good faith negotiations with the Lead Investor in furtherance of the potential acquisition of such launch business by the Lead Investor. |
In addition, the terms of the Proposed Financing contemplate that the Company will issue warrants to the Potential Investors to purchase a number of shares of Class A Common Stock equal to 35% of the number of shares issuable upon conversion of the principal amount of the Notes at the Conversion Price. The exercise price of the warrants will be equal to the Conversion Price, and the warrants will be exercisable for a period of five years from the closing.
The Term Sheet contemplates that the conversion of the Notes and the issuance of shares upon the exercise of the warrants will be subject to certain limitations on the number of shares that can be issued to ensure compliance with Nasdaq listing requirements.
The foregoing summary of the Term Sheet does not purport to be a complete summary of the terms of the Proposed Financing and there is no guarantee that the Proposed Financing will occur on these terms or at all. The Special Committee has not yet evaluated the Proposed Financing or determined that the term sheet constitutes an acceptable proposal. Accordingly, funding contemplated by the Term Sheet is conditioned upon execution of final definitive documentation among the Company and the Potential Investors and approval by the Special Committee; however there can be no assurance that the Company and the Potential Lead Investor will be able to negotiate definitive documentation or consummate the Proposed Financing.
The Notes, the guarantees and the warrants will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) or the securities laws of any other jurisdiction, but the Potential Investors will have customary registration rights with respect to the shares of Class A Common Stock issuable upon conversion of the Notes and exercise of the warrants. The Notes and the guarantees may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements. This report does not constitute an offer to sell any security, including the Notes or the guarantees, nor a solicitation for an offer to purchase any security, including the Notes or the guarantees, nor shall there be any sale of the securities in any jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration, qualification, or exemption under the securities laws of any such jurisdiction.
The statements made herein concerning the Proposed Financing include “forward-looking statements.” Specific forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts and can be identified by the use of, without limitation, words such as “may,” “will,” “expects,” “believes,” “anticipates,” “plans,” “estimates,” “projects,” “targets,” “forecasts,” “seeks,” “would,” “could” or the negative of such terms or other variations on such terms or comparable terminology. Similarly, statements that describe any objectives, the Proposed Financing, involvement of any Potential Investors, plans or goals are forward-looking. The forward-looking statements are based on the Company’s current intent, belief, expectations, estimates and projections regarding the Company and the Proposed Financing. These statements are not guarantees of future performance and involve risks, uncertainties, assumptions and other factors that are difficult to predict and that could cause actual results to differ materially. Accordingly, readers should not rely upon forward-looking statements as a prediction of actual results and actual results may vary materially from what is expressed in or indicated by the forward-looking statements. This cautionary statement is applicable to all forward-looking statements contained herein.
