Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Effective Date, the Company issues or sells, or in accordance with this Section 3(e)(i) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding Excluded Securities) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Closing Sale Price in effect immediately prior to such issuance (other than such issuances or sales pursuant to an underwritten public offering for which the Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discounts) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance and (y) the quotient of (1) the sum of (I) the product of the Conversion Price in effect immediately prior to such Dilutive Issuance and the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance and (II) the consideration, if any, received by the Company from such Dilutive Issuance, divided by (2) the sum of (I) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (y) the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance plus (II) the product of (x) the number of shares of Common Stock sold in such Dilutive Issuance or deemed to be outstanding pursuant to Sections 3(e)(i)(A) and 3(e)(i)(B) with respect to such Dilutive Issuance, as applicable, and (y) the Applicable Price. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i), the following shall be applicable:
Appears in 1 contract
Samples: Purchase Agreement (GeoEye, Inc.)
Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Effective Date, the Company issues or sells, or in accordance with this Section 3(e)(i) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding at any time while this Note is outstanding, issues or sells any Common Shares or Convertible Securities, including any issuances in connection with a Concurrent Issuance (as defined in the SEPA, even if such issuance was made prior to the issuance of this Note) (other than shares issued or sold by the Company in connection with any Excluded Securities) ), for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Closing Sale Fixed Price in effect immediately prior to such issuance issue or sale (other than such issuances or sales pursuant to an underwritten public offering for which price the “Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discountsPrice”) (the foregoing foregoing, a “Dilutive Issuance”), then immediately after such Dilutive Issuance, Issuance the Conversion Fixed Price then in effect shall be reduced to an amount equal to the product New Issuance Price. For the purposes hereof, if the Company in any manner issues or sells any Convertible Securities (other than shares issued or sold by the Company in connection with any Excluded Securities) and the lowest price per share for which one Common Share is issuable upon such conversion or exchange or exercise thereof is less than the Applicable Price, then such Common Share shall be deemed to be outstanding and to have been issued and sold by the Company at the time of (x) the Conversion Price in effect immediately prior to issuance or sale of such Dilutive Issuance and (y) the quotient of (1) the sum of (I) the product Convertible Securities for such price per share. No further adjustment of the Conversion Price in effect immediately prior shall be made upon the actual issuance of such Common Share upon conversion or exchange or exercise of such Convertible Securities. If any Concurrent Issuances contain conversion price adjustments that are more favorable to the provisions of this Note, including the determination of the Variable Price, or if the price per share for which one Common Share is issuable upon conversion or exchange or exercise of any Concurrent Issuance is subsequently reduced to a price that is less than the Applicable Price, then such change shall be considered a Dilutive Issuance for the purposes of this Section 3(f), and the number of shares of Common Stock Deemed Outstanding immediately prior Holder, at its option, shall be entitled to such Dilutive Issuance and (II) the consideration, if any, received by same adjustment to the Company from Fixed Price or shall be entitled to an adjustment to the Variable Price to match such Dilutive Issuance, divided by (2) the sum of (I) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (y) the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance plus (II) the product of (x) the number of shares of Common Stock sold in such Dilutive Issuance or deemed to be outstanding pursuant to Sections 3(e)(i)(A) and 3(e)(i)(B) with respect to such Dilutive Issuance, as applicable, and (y) the Applicable Price. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i), the following shall be applicable:.
Appears in 1 contract
Adjustment of Conversion Price upon Issuance of Common Stock. If Subject to the immediately following sentence which relates to issuances occurring within the first nine months following the Initial Issuance Date, if and whenever on or after the Effective Initial Issuance Date, the Company issues or sells, or in accordance with this Section 3(e)(i2(f)(i) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded SecuritiesSecurity) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Closing Sale Conversion Price in effect immediately prior to such issuance (other than such issuances issue or sales pursuant to an underwritten public offering for which the Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discounts) sale (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the product of (x) Adjusted Price. After the Conversion Price in effect immediately Initial Issuance Date and prior to such Dilutive Issuance and the nine (y9) the quotient of (1) the sum of (I) the product month anniversary of the Conversion Price in effect immediately prior Initial Issuance Date, the “Applicable Price” with respect to such Dilutive Issuance and any issuance or sale by the number Company of Common Stock (including the issuance or sale of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance and (II) owned or held by or for the considerationaccount of the Company, if any, received by the Company from such Dilutive Issuance, divided by (2) the sum of (I) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (y) the number of but excluding shares of Common Stock Deemed Outstanding immediately deemed to have been issued or sold by the Company in connection with any Excluded Security) shall be the Market Price; provided that, without the prior to written consent of the Required Holders, during such Dilutive Issuance plus nine (II9) month period, the product of (x) the number of shares of Company shall not issue Common Stock sold in such Dilutive Issuance or deemed to be outstanding pursuant to Sections 3(e)(i)(Afor which it receives proceeds (net of offering expenses, discounts and fees) and 3(e)(i)(Bof more than Thirty Million Dollars ($30,000,000) with respect to such Dilutive Issuance, as applicable, and (y) at a gross per share price below the Applicable Market Price. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i2(f)(i), the following shall be applicable:
Appears in 1 contract
Adjustment of Conversion Price upon Issuance of Common Stock. If Except as provided in Paragraph 6(d)(5) , if and whenever on the Corporation shall issue or after the Effective Date, the Company issues or sells, or in accordance with this Section 3(e)(i) is deemed to have issued or sold, sell any shares of its Common Stock for a consideration per share less than the Conversion Price then in effect on the date of such issue or sale, then, forthwith upon such issue or sale, the Conversion Price shall be reduced to the price (including calculated to the issuance nearest cent -- a half cent or more being considered a full cent) determined by multiplying the Conversion Price in effect immediately prior to the time of such issue or sale by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock owned outstanding immediately prior to such issue or held sale multiplied by or for the account of the Company, but excluding Excluded Securities) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Closing Sale Conversion Price in effect immediately prior to such issuance issue or sale plus (other than ii) the consideration received by the Corporation upon such issuances issue or sales pursuant to an underwritten public offering for sale, and the denominator of which the Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discounts) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the product of (xiii) the total number of shares of Common Stock outstanding immediately after such issue or sale, multiplied by (iv) the Conversion Price in effect immediately prior to such Dilutive Issuance and (y) issue or sale. For the quotient of (1) the sum of (I) the product purposes of the Conversion Price foregoing calculation, all shares of Common Stock of the Corporation issuable upon conversion of all then outstanding convertible securities (including those certain 8% Debentures issued pursuant to that certain Debenture and Note Purchase Agreement dated June 29, 1999 (the "Debenture and Note Purchase Agreement")) and upon exercise of all then outstanding options, warrants or other rights to acquire Common Stock (including those certain Warrants issued pursuant to the Debenture and Note Purchase Agreement) shall be deemed outstanding but only to the extent and only if the Market Value of the Common Stock of the Corporation on such date is in excess of the conversion price of such convertible securities then in effect immediately prior to or the exercise price of such Dilutive Issuance and options, warrants or other rights then in effect, respectively.
(i) In case of the number issuance or sale of shares of Common Stock Deemed Outstanding immediately prior for a consideration part or all of which shall be cash, the amount of cash consideration therefor shall be deemed to such Dilutive Issuance and (II) be the consideration, if any, amount of cash received by the Company from Corporation for such Dilutive Issuanceshares (or, divided if shares of Common Stock are offered by the Corporation for subscription, the subscription price, or, if shares of Common Stock shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) without deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services or any expenses incurred in connection therewith.
(2ii) In case of the sum issuance or sale (otherwise than as a dividend or other distribution on or subdivision of (Iany stock of the Corporation or on conversion or exchange of other securities of the Corporation) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (y) the number of shares of Common Stock Deemed Outstanding for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration, as determined in good faith by the Board of Directors of the Corporation, at or about, but as of, the date of the adoption of the resolution authorizing such issuance for a consideration other than cash of such Common Stock immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such Dilutive Issuance plus Common Stock.
(IIiii) the product of (x) the number of shares Shares of Common Stock sold in such Dilutive Issuance issuable by way of dividend or other distribution on or subdivision of any stock of the Corporation shall be deemed to be outstanding pursuant have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to Sections 3(e)(i)(A) and 3(e)(i)(B) with respect to receive such Dilutive Issuance, as applicable, and (y) the Applicable Price. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i), the following shall be applicable:dividend or other distribution or subdivision.
Appears in 1 contract
Samples: Debenture and Note Purchase Agreement (Safeguard Health Enterprises Inc)
Adjustment of Conversion Price upon Issuance of Common Stock. (a) If and whenever on or after the Effective Subscription Date through the eighteen (18) month anniversary of the Issuance Date, the Company issues or sells, or in accordance with this Section 3(e)(i13.09(a) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded SecuritiesSecurity) for a consideration per share (the “"New Securities Issuance Price”") less than a price (the “"Applicable Price”") equal to the Closing Sale Conversion Price in effect immediately prior to such issuance (other than such issuances issue or sales pursuant to an underwritten public offering for which the Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discounts) sale (the foregoing a “"Dilutive Issuance”"), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Securities Issuance Price. If and whenever after the eighteen (18) month anniversary of the Issuance Date, the Company issues or sells, or in accordance with this Section 13.09(a) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded Security) in a Dilutive Issuance, then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal the product of (xA) the Conversion Price in effect immediately prior to such Dilutive Issuance and (yB) the quotient of determined by dividing (1) the sum of (I) the product of derived by multiplying the Conversion Price in effect immediately prior to such Dilutive Issuance and the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance and plus (II) the consideration, if any, received by the Company from upon such Dilutive Issuance, divided by (2) the sum of product derived by multiplying (I) the product of (x) the Conversion Applicable Price in effect immediately prior to such Dilutive Issuance multiplied by (yII) the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance plus (II) the product of (x) the number of shares of Common Stock sold in such Dilutive Issuance or deemed to be outstanding pursuant to Sections 3(e)(i)(A) and 3(e)(i)(B) with respect to after such Dilutive Issuance, as applicable, and (y) the Applicable Price. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i13.09(a), the following shall be applicable:
Appears in 1 contract
Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Effective DateSubscription Date and prior to the consummation of a Qualified IPO, the Company issues or sells, or in accordance with this Section 3(e)(i7(a) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding Excluded Securitiesshares of Common Stock issued or sold or deemed to have been issued or sold by the Company with respect to Options to acquire up to 6,000,000 shares of Common Stock that may be awarded by the Company solely to employees, officers and directors for services provided to the Company) for a consideration per share (the “New Issuance Price”) less than a price (the “Pre-Qualified IPO Applicable Price”) equal to the Closing Sale Conversion Price in effect immediately prior to such issuance (other than such issuances issue or sales pursuant to an underwritten public offering for which the Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discounts) sale (the foregoing issuance, a “Pre-Qualified IPO Dilutive Issuance”), then immediately after such Pre-Qualified IPO Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price. If and whenever on or after the consummation of a Qualified IPO, the Company issues or sells, or in accordance with this Section 7(a) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock issued or sold or deemed to have been issued or sold by the Company in each case solely in connection with any Excluded Security) for a consideration per share less than a price (the “Post-Qualified IPO Applicable Price”) equal to the Market Price then in effect (the foregoing issuance, a “Post-Qualified IPO Dilutive Issuance”), then immediately after such Post-Qualified IPO Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the product of (xi) the Conversion Price in effect immediately prior to such Dilutive Issuance issuance or sale and (yii) the quotient determined by dividing (A) the sum of (1) the sum of (I) product derived by multiplying the product of the Conversion Post-Qualified IPO Applicable Price in effect immediately prior to such Dilutive Issuance and the number of shares of Common Stock Deemed Outstanding immediately prior to such Post-Qualified IPO Dilutive Issuance and plus (II2) the consideration, if any, received by the Company from upon such Post-Qualified IPO Dilutive Issuance, divided by (B) the product derived by multiplying (1) the Post-Qualified IPO Applicable Price by (2) the sum of (I) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (y) the number of shares of Common Stock Deemed Outstanding immediately prior to after such Dilutive Issuance plus (II) the product of (x) the number of shares of Common Stock sold in such Dilutive Issuance or deemed to be outstanding pursuant to Sections 3(e)(i)(A) and 3(e)(i)(B) with respect to such Post-Qualified IPO Dilutive Issuance, as applicable, and (y) the Applicable Price. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i7(a), the following shall be applicable:
Appears in 1 contract
Adjustment of Conversion Price upon Issuance of Common Stock. If Except as provided in Paragraph 6(d)(5) , if and whenever on the Corporation shall issue or after the Effective Date, the Company issues or sells, or in accordance with this Section 3(e)(i) is deemed to have issued or sold, sell any shares of its Common Stock for a consideration per share less than the Conversion Price then in effect on the date of such issue or sale, then, forthwith upon such issue or sale, the Conversion Price shall be reduced to the price (including calculated to the issuance nearest cent -- a half cent or more being considered a full cent) determined by multiplying the Conversion Price in effect immediately prior to the time of such issue or sale by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock owned outstanding immediately prior to such issue or held sale multiplied by or for the account of the Company, but excluding Excluded Securities) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Closing Sale Conversion Price in effect immediately prior to such issuance issue or sale plus (other than ii) the consideration received by the Corporation upon such issuances issue or sales pursuant to an underwritten public offering for sale, and the denominator of which the Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discounts) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the product of (xiii) the total number of shares of Common Stock outstanding immediately after such issue or sale, multiplied by (iv) the Conversion Price in effect immediately prior to such Dilutive Issuance and (y) issue or sale. For the quotient of (1) the sum of (I) the product purposes of the Conversion Price foregoing calculation, all shares of Common Stock of the Corporation issuable upon conversion of all then outstanding convertible securities (including those certain 8% Debentures issued pursuant to that certain Debenture and Note Purchase Agreement dated June __, 1999 (the "Debenture and Note Purchase Agreement")) and upon exercise of all then outstanding options, warrants or other rights to acquire Common Stock (including those certain Warrants issued pursuant to the Debenture and Note Purchase Agreement) shall be deemed outstanding but only to the extent and only if the Market Value of the Common Stock of the Corporation on such date is in excess of the conversion price of such convertible securities then in effect immediately prior to or the exercise price of such Dilutive Issuance and options, warrants or other rights then in effect, respectively.
(i) In case of the number issuance or sale of shares of Common Stock Deemed Outstanding immediately prior for a consideration part or all of which shall be cash, the amount of cash consideration therefor shall be deemed to such Dilutive Issuance and (II) be the consideration, if any, amount of cash received by the Company from Corporation for such Dilutive Issuanceshares (or, divided if shares of Common Stock are offered by the Corporation for subscription, the subscription price, or, if shares of Common Stock shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) without deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services or any expenses incurred in connection therewith.
(2ii) In case of the sum issuance or sale (otherwise than as a dividend or other distribution on or subdivision of (Iany stock of the Corporation or on conversion or exchange of other securities of the Corporation) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (y) the number of shares of Common Stock Deemed Outstanding for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration, as determined in good faith by the Board of Directors of the Corporation, at or about, but as of, the date of the adoption of the resolution authorizing such issuance for a consideration other than cash of such Common Stock immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such Dilutive Issuance plus Common Stock.
(IIiii) the product of (x) the number of shares Shares of Common Stock sold in such Dilutive Issuance issuable by way of dividend or other distribution on or subdivision of any stock of the Corporation shall be deemed to be outstanding pursuant have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to Sections 3(e)(i)(A) and 3(e)(i)(B) with respect to receive such Dilutive Issuance, as applicable, and (y) the Applicable Price. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i), the following shall be applicable:dividend or other distribution or subdivision.
Appears in 1 contract
Samples: Debenture and Note Purchase Agreement (Anderson Jack R)
Adjustment of Conversion Price upon Issuance of Common Stock. 5.2.1. If and whenever on or after the Effective Datedate hereof the Company shall issue or sell any Common Stock for no consideration or for a consideration per share less than the Conversion Price, the Company issues or sellsConversion Price shall be reduced (but not increased, or in accordance with this Section 3(e)(iexcept as otherwise specifically provided herein), to the price (calculated to the nearest one-tenth of a cent) is deemed determined by dividing (x) an amount equal to have issued or sold, any shares the sum of Common Stock (including 1) the issuance or sale aggregate number of shares of Common Stock owned or held by or for the account of the Company, but excluding Excluded Securities) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Closing Sale Price in effect outstanding immediately prior to such issuance issue or sale multiplied by the then existing Conversion Price plus (2) the consideration received by the Company upon such issue or sale by (y) the aggregate number of shares of Common Stock outstanding immediately after such issue or sale.
5.2.2. No adjustment shall be made in the Conversion Price in the event that the Company issues, in one or more transactions, (i) Common Stock upon exercise of any options issued to officers, directors or employees of the Company pursuant to a stock option plan or an employment, severance or consulting agreement as now or hereafter in effect, the 1996 Nonemployee Directors' Stock Option Plan, or the Management Incentive Stock Plan, in each case approved by the Board of Directors, provided that the aggregate number of shares of Common Stock which may be issuable, including options issued prior to the date hereof, under all such employee plans and agreements shall at no time exceed the number of such shares of Common Stock that are issuable under currently effective employee plans and agreements, the 1996 Nonemployee Directors' Stock Option Plan, or the Management Incentive Stock Plan; (ii) Common Stock upon conversion of this Note or exercise of the Warrants; (iii) Common Stock upon exercise of any stock purchase warrant or option (other than such issuances the options referred to in clause (i) above) or sales other convertible security outstanding on the date hereof; or (iv) Common Stock issued as consideration in acquisitions. In addition, for purposes of calculating any adjustment of the Conversion Price, all of the shares of Common Stock issuable pursuant to an underwritten public offering any of the foregoing shall be assumed to be outstanding prior to the event causing such adjustment to be made.
5.2.3. In case at any time after the date hereof the Company shall in any manner grant (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase Common Stock or any options, except for options issued to officers, directors or employees of the Company pursuant to a stock option plan in effect as of the date hereof, the 1996 Nonemployee Directors' Stock Option Plan, or the Management Incentive Stock Plan, for the purchase of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such convertible or exchangeable stock or securities being herein called "Convertible Securities"), whether or not such rights or options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which shares of Common Stock are issuable upon the Applicable Price is exercise of such rights or options or upon conversion or exchange of such Convertible Securities (determined by dividing (i) the total amount, if any, received or receivable by the Company as consideration for the granting of such rights or options, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the exercise of such rights or options, or plus, in the case of such rights or options that relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock issuable upon the exercise of such rights or options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such rights or options) shall be less than the Conversion Price in effect as of the date of granting such Closing Sale Price solely on account of customary selling concessions and discounts) (the foregoing a “Dilutive Issuance”)rights or options, then immediately after the total maximum number of shares of Common Stock issuable upon the exercise of such Dilutive Issuancerights or options or upon conversion or exchange of all such Convertible Securities issuable upon the exercise of such rights or options shall be deemed to be outstanding as of the date of the granting of such rights or options and to have been issued for such price per share, with the effect on the Conversion Price specified herein. Except as provided herein, no further adjustment of the Conversion Price shall be made upon the actual issuance of such Common Stock or of such Convertible Securities upon exercise of such rights or options or upon the actual issuance of such Common Stock upon conversion or exchange of such Convertible Securities.
5.2.4. If: (i) the purchase price provided for in any right or option, (ii) the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities, or (iii) the rate at which any Convertible Securities are convertible into or exchangeable for Common Stock shall be decreased (other than by reason of provisions designed to protect against dilution), the Conversion Price then in effect shall be reduced decreased to an amount equal to the product of (x) the Conversion Price that would have been in effect immediately prior had such rights, options or Convertible Securities provided for such changed purchase price, additional consideration or conversion rate at the time initially issued.
5.2.5. In case at any time Common Stock or Convertible Securities or any rights or options to purchase Common Stock or Convertible Securities shall be issued or sold for cash, the total amount of cash consideration shall be deemed to be the amount received by the Company. If at any time any Common Stock, Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration, as determined reasonably and in good faith by the Board of Directors of the Company. If at any time any Common Stock, Convertible Securities or any rights or options to purchase any Common Stock or Convertible Securities shall be issued in connection with any merger or consolidation in which the Company is the surviving corporation, the amount of consideration received therefor shall be deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the Company, of such portion of the assets and business of the nonsurviving corporation as such Board of Directors may determine to be attributable to such Dilutive Issuance Common Stock, Convertible Securities, rights or options as the case may be. In case at any time any rights or options to purchase any shares of Common Stock or Convertible Securities shall be issued in connection with the issuance and (y) the quotient sale of (1) the sum of (I) the product other securities of the Conversion Price Company, together consisting of one integral transaction in effect immediately prior which no consideration is allocated to such Dilutive Issuance and rights or options by the parties, such rights or options shall be deemed to have been issued without consideration.
5.2.6. In the case the Company shall take a record of the holders of its Common Stock for the purpose of entitling them (i) to receive a dividend or other distribution payable in Common Stock or Convertible Securities, or (ii) to subscribe for or purchase Common Stock or Convertible Securities, then such record date shall be deemed to be the date of the issuance or sale of the Common Stock or Convertible Securities deemed to have been issued or sold as a result of the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
5.2.7. The number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance and (II) the consideration, if any, received outstanding at any given time shall not include shares owned directly by the Company from in treasury, and the disposition of any such Dilutive Issuance, divided by (2) the sum of (I) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (y) the number of shares shall be considered an issuance or sale of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance plus (II) the product of (x) the number of shares of Common Stock sold in such Dilutive Issuance or deemed to be outstanding pursuant to Sections 3(e)(i)(A) and 3(e)(i)(B) with respect to such Dilutive Issuance, as applicable, and (y) the Applicable Price. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i), the following shall be applicable:Stock.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Florafax International Inc)
Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Effective Date, date hereof the Company issues shall issue or sells, or in accordance sell any shares of its Common Stock (except with this Section 3(e)(i) is deemed respect to have issued or sold, any the issuance of the Additional Consideration Shares and the shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account issuable upon conversion of the Company, but excluding Excluded SecuritiesNotes or upon the exercise of the Warrants) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Closing Sale Price in effect immediately prior to such issuance (other than such issuances or sales pursuant to an underwritten public offering for which the Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discounts) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the product of (x) the Conversion Price in effect immediately prior to the time of such Dilutive Issuance and issue or sale or the Market Price at the time of such issue or sale, then, forthwith upon such issue or sale, the Conversion Price with respect to the conversion of any Note subsequent to such event shall be reduced (ybut not increased, except as otherwise specifically provided in paragraph 9D(3) to the quotient lower of the prices (calculated to the nearest cent) determined as follows:
(1) an amount equal to the sum of (IA) the product of the Conversion Price in effect immediately prior to such Dilutive Issuance and the aggregate number of shares of Common Stock Deemed Outstanding outstanding immediately prior to such Dilutive Issuance issue or sale multiplied by the then existing Conversion Price, and (IIB) the consideration, if any, received by the Company from upon such Dilutive Issuanceissue or sale, divided by (2ii) the sum aggregate number of (I) the product shares of (x) Common Stock of all classes outstanding immediately after such issue or sale; and by multiplying the Conversion Price in effect immediately prior to the time of such Dilutive Issuance multiplied issue or sale by a fraction, the numerator of which shall be the sum of (yi) the aggregate number of shares of Common Stock Deemed Outstanding outstanding immediately prior to such Dilutive Issuance issue or sale multiplied by the Market Price immediately prior to such issue or sale plus (IIii) the consideration received by the Company upon such issue or sale, and the denominator of which shall be the product of (xiii) the aggregate number of shares of Common Stock sold in of all classes outstanding immediately after such Dilutive Issuance issue or deemed to be outstanding pursuant to Sections 3(e)(i)(Asale, multiplied by (iv) and 3(e)(i)(B) with respect the Market Price immediately prior to such Dilutive Issuanceissue or sale. No adjustment of the Conversion Price, as applicablehowever, shall be made in an amount less than 1% of the Conversion Price, but any such lesser adjustment shall be carried forward and (y) shall be made at the Applicable Pricetime of and together with the next subsequent adjustment. For the purposes of determining the adjusted Conversion Price under this Section 3(e)(i)paragraph 9D, the following paragraphs 9D(1) through 9D(9) shall also be applicable:
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Samples: Note, Stock Purchase and Warrant Agreement (Elephant & Castle Group Inc)
Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Effective Subscription Date, the Company issues or sells, or in accordance with this Section 3(e)(i7(a) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of excluding Excluded Securities and shares of Common Stock owned deemed to have been issued or held sold by or for the account of the Company, but excluding Company in connection with any Excluded Securities) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Closing Sale Conversion Price in effect immediately prior to such issue or sale or deemed issuance (other than such issuances or sales pursuant to an underwritten public offering for which the Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discounts) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, Issuance the Conversion Price then in effect shall be reduced concurrently with such Dilutive Issuance to (A) in the event that the Dilutive Issuance is completed at a time during which at least one-third of the Original Principal Amount of the Notes remains outstanding (the “Ratchet Period”), to the New Issuance Price, and (B) in the event that the Dilutive Issuance is completed at a time that less than one-third of the Original Principal Amount of the Notes remain outstanding, an amount equal to determined by multiplying the product of Conversion Price then in effect by a fraction, (x) the Conversion Price in effect immediately prior to such Dilutive Issuance and (y) the quotient numerator of (1) which shall be the sum of (I) the product of the Conversion Price in effect immediately prior to such Dilutive Issuance and the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance and (II) the consideration, if any, received by the Company from such Dilutive Issuance, divided by (2) the sum of (I) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (y1) the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance plus (II) the product of (x2) the number of shares of Common Stock sold which the aggregate consideration received by the Company for such additional shares in the Dilutive Issuance would purchase at the Conversion Price then in effect; and (y) the denominator of which shall be the number of shares of Common Stock Deemed Outstanding immediately after such Dilutive Issuance or but before giving effect to anti-dilution rights contained in other securities of the Company that would be triggered by the same Dilutive Issuance. For purposes of this paragraph, “Common Stock Deemed Outstanding” shall mean at any given time, the number of shares of Common Stock outstanding at such time, plus the number of shares of Common Stock deemed to be outstanding pursuant to Sections 3(e)(i)(A7(a)(i) and 3(e)(i)(B7(a)(ii) with respect to hereof regardless of whether the Options or Convertible Securities are actually exercisable at such Dilutive Issuancetime, but excluding any Common Stock owned or held by or for the account of the Company or issuable upon conversion or exercise, as applicable, of the Notes and (y) the Applicable PriceWarrants. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i7(a), the following shall be applicable:
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Samples: Securities Purchase Agreement (Biovest International Inc)
Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever during the period starting on or after the Effective Issuance Date and ending on and including the third anniversary of the Issuance Date, the Company issues or sells, or in accordance with this Section 3(e)(i7(a) is deemed to have issued or sold, any shares of Common Stock (including including, without limitation, the issuance or sale of shares of Common Stock owned or held by or for the account of the CompanyCompany and the issuance of any shares of Common Stock, Options or Convertible Securities in exchange for any security such as a non-convertible note, but excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded SecuritiesSecurity) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Closing Sale Conversion Price in effect immediately prior to such issuance (other than such issuances issue or sales pursuant to an underwritten public offering for which the Applicable Price is less than such Closing Sale Price solely on account of customary selling concessions and discounts) sale (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to the New Issuance Price. If and whenever after the third anniversary of the Issuance Date, the Company engages in a Dilutive Issuance, then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the product of (xA) the Conversion Price in effect immediately prior to such Dilutive Issuance and (yB) the quotient of determined by dividing (1) the sum of (I) the product of derived by multiplying the Conversion Price in effect immediately prior to such Dilutive Issuance and the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance and plus (II) the consideration, if any, received by the Company from upon such Dilutive Issuance, divided by (2) the sum of product derived by multiplying (I) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (yII) the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance plus (II) the product of (x) the number of shares of Common Stock sold in such Dilutive Issuance or deemed to be outstanding pursuant to Sections 3(e)(i)(A) and 3(e)(i)(B) with respect to after such Dilutive Issuance, as applicable, and (y) provided that in no event shall the Applicable PriceConversion Price be reduced below the par value of the Common Stock. For purposes of determining the adjusted Conversion Price under this Section 3(e)(i7(a), the following shall be applicable:
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