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Common use of Anti-Dilution Protection Clause in Contracts

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen shall issue any of its shares of Aspen Common Stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen shall reduce the number of outstanding shares of Aspen Common Stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) shall not apply to a merger with a subsidiary provided Aspen is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of Aspen.

Appears in 2 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement (Aspen Group, Inc.)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen that the Borrower shall issue any of its shares of Aspen Common Stock common stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock common stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note Conversion Price shall be increased proportionately; and, conversely, in the event that Aspen the Borrower shall reduce the number of outstanding shares of Aspen Common Stock common stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note Conversion Price shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock the common stock in shares of any other class of capital stock of Aspen the Borrower or securities convertible into shares of Aspen Common Stock common stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Notecommon stock. In the event that Aspen the Borrower shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon the next conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note conversion occurred immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen that the Borrower shall be recapitalized by reclassifying its outstanding Aspen Common Stock common stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen the Borrower or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Borrower or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Borrower theretofore issuable upon the conversion of this Note, such shares, the Holder upon conversion shall receive the securities or assets as may be issued or payable with respect to or in exchange for paid as a result of the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken placeforegoing; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock common stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) 3 shall not apply to a merger with a subsidiary provided Aspen the Borrower is the continuing Corporation or involving a subsidiary merger and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassificationreclassifications, capital reorganizations and changes of securities and to successive consolidationconsolidations, mergers, sales or conveyances. (c) In the event Aspenthe Borrower, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Borrower which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Borrower; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert conversion provisions of this Note shall terminate on a date fixed by Aspenthe Borrower, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert conversion provisions of this Note has been given by mail to the Holder of this Note at such HolderXxxxxx’s address as it appears on the books of Aspenthe Borrower.

Appears in 1 contract

Samples: Convertible Note (Vapor Corp.)

Anti-Dilution Protection. This Note shall not be subject to the reverse stock split declared by the Company on March 17, 2006 effective to shareholders of record as of the close of business on March 27, 2006. All of the remaining provisions of this Section 3 shall apply following that event. (a) In the event, prior to the payment of this Note, Aspen the Company shall issue any of its shares of Aspen Common Stock common stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock common stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen the Company shall reduce the number of outstanding shares of Aspen Common Stock common stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock common stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock the common stock in shares of any other class of capital stock of Aspen the Company or securities convertible into shares of Aspen Common Stock common stock shall be treated as a dividend paid in Aspen Common Stock common stock to the extent that the shares of Aspen Common Stock common stock are issuable upon the conversion of the Note. In the event that Aspen the Company shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen the Company shall be recapitalized by reclassifying its outstanding Aspen Common Stock common stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen the Company or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a "Corporation") shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s 's property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term "successor Corporation" used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Company or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receivepurchase, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Company theretofore issuable purchasable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen the Company theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock common stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) 2 shall not apply to a merger with a subsidiary provided Aspen the Company is the continuing Corporation except as provided in the next clause, the merger is with Portagy Corp. or the purpose of the merger is to change the state of incorporation of the Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b2(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspenthe Company, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolvedissolves, liquidateliquidates, or wind winds up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Company which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Company; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspenthe Company, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s Xxxxxx's address as it appears on the books of Aspenthe Company.

Appears in 1 contract

Samples: Convertible Note (Cell Power Technologies Inc)

Anti-Dilution Protection. (a) In If the eventCompany shall, prior at any time or from time to time after the payment date of this NoteAgreement, Aspen shall issue (i) pay or make any distribution upon any membership interest of the Company payable in membership interests or other convertible securities, or (ii) subdivide (by any membership interest split, recapitalization or otherwise) its shares of Aspen Common Stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock membership interests into a greater number of shares, then, in either of such eventsunits, the shares obtainable pursuant Exercise Price in effect immediately prior to conversion of this Note any such distribution or subdivision shall be increased proportionately; and, conversely, in the event that Aspen shall reduce proportionately reduced and the number of Warrant Units issuable upon exercise of this Warrant shall be proportionately increased. If the Company at any time combines (by combination, reverse membership interest split or otherwise) its outstanding shares of Aspen Common Stock by combining such shares membership interests into a smaller number of sharesunits, then, the Exercise Price in effect immediately prior to such event, combination shall be proportionately increased and the number of shares of Aspen Common Stock obtainable pursuant to the conversion Warrant Units issuable upon exercise of this Note Warrant shall be decreased proportionatelyproportionately decreased. Any dividend paid adjustment under this Section 14(a) shall become effective at the close of business on the date the distribution, subdivision or distributed upon Aspen Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividendcombination becomes effective. (b) In the eventevent of any (i) capital reorganization of the Company, prior to (ii) reclassification of the payment membership interest of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock the Company (other than into shares a change in par value or from par value to no par value or from no par value to par value or as a result of common stock with a different par valuemembership interest distribution or subdivision, split-up or by changing its outstanding shares combination of common stock to shares without par valueunits), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”iii) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation withthe Company with or into another Person, or the (iv) sale of all or substantially all of the property of Company’s assets to another Person or (v) other similar transaction (other than any such other Corporation to, another Corporation or Corporationstransaction covered by Section 14(a)), in each case which entitles the holders of membership interest to receive (either directly or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such sharessubsequent liquidation) membership interest, securities or assets as may be issued or payable with respect to or in exchange for membership interest, each Warrant shall, immediately after such reorganization, reclassification, consolidation, merger, sale or similar transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of Warrant Units then exercisable under this Warrant, be exercisable for the kind and number of membership interests or other securities or assets of Aspen theretofore obtainable the Company or of the successor Person resulting from such transaction to which the Holder would have been entitled upon conversion of this Note as provided above had such reclassification, reorganization, recapitalizationreclassification, consolidation, merger merger, sale or conveyance not taken place; and in any such event, the rights of similar transaction if the Holder had exercised this Warrant immediately prior to the time of such reorganization, reclassification, consolidation, merger, sale or similar transaction and acquired the applicable number of Warrant Units then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Note Warrant); and, in such case, appropriate adjustment (in form and substance satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant to insure that the provisions of this Section 14 shall thereafter be applicable, as nearly as possible, to this Warrant in relation to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any sharesmembership interests, securities or assets thereafter acquirable upon exercise of this Warrant (including, in the case of any consolidation, merger, sale or similar transaction in which the Holder becomes entitled to obtain. Notwithstanding anything herein successor or purchasing Person is other than the Company, an immediate adjustment in the Exercise Price to the contraryvalue per unit for the membership interest reflected by the terms of such consolidation, merger, sale or similar transaction, and a corresponding immediate adjustment to the number of Warrant Units acquirable upon exercise of this Section 3(b) shall not apply Warrant without regard to a merger with a subsidiary provided Aspen any limitations or restrictions on exercise, if the value so reflected is less than the continuing Corporation and provided further Exercise Price in effect immediately prior to such merger does not result in any reclassificationconsolidation, capital reorganization merger, sale or other change of the securities issuable under this Notesimilar transaction). The foregoing provisions of this Section 3(b14(b) shall similarly apply to successive reclassificationreorganizations, capital reorganizations and changes of securities and to successive consolidationreclassifications, consolidations, mergers, sales or conveyancessimilar transactions. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of Aspen.

Appears in 1 contract

Samples: Warrant and Option Agreement (Lexaria Bioscience Corp.)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen the Company shall issue any of its shares of Aspen Common Stock common stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock common stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen the Company shall reduce the number of outstanding shares of Aspen Common Stock common stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock common stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock the common stock in shares of any other class of capital stock of Aspen the Company or securities convertible into shares of Aspen Common Stock common stock shall be treated as a dividend paid in Aspen Common Stock common stock to the extent that the shares of Aspen Common Stock common stock are issuable upon the conversion of the Note. In the event that Aspen the Company shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen the Company shall be recapitalized by reclassifying its outstanding Aspen Common Stock common stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen the Company or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Company or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receivepurchase, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Company theretofore issuable purchasable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen the Company theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock common stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) paragraph 2 shall not apply to a merger with a subsidiary provided Aspen the Company is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(bparagraph 2(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspenthe Company, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolvedissolves, liquidateliquidates, or wind winds up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Company which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Company; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspenthe Company, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such HolderXxxxxx’s address as it appears on the books of Aspenthe Company. (d) In the event the Company issues or sells any securities including options, warrants or convertible securities at a price of or with an exercise or conversion price of less than $0.15 per share, then forthwith upon such issue or sale, the Exercise Price of all the warrants shall be reduced to the sale price or the exercise or conversion price of the securities issued or sold.

Appears in 1 contract

Samples: Convertible Note Agreement (Ecosphere Technologies Inc)

Anti-Dilution Protection. (a) In the eventAs provided in this Section 4.1, prior to the payment of this Note, Aspen shall issue any of its shares of Aspen Common Stock as a stock dividend or shall subdivide ------------------------ the number of outstanding shares of Aspen Series A Common shall be subject to adjustment from time to time upon the occurrence of certain events, the purpose of which adjustment or adjustments shall be for the number of shares of issued and outstanding Series A Common to equal twenty percent (20%) of the issued and outstanding shares of all series of Common Stock of the Corporation (the "Issued and Outstanding Common Shares"); provided, however, that the Issued and Outstanding Common Shares shall specifically exclude any shares of Common Stock and options therefor issued to directors, officers, employees or consultants of the Corporation pursuant to a stock option or other equity incentive plan or agreement approved by the Board of Directors of the Corporation (a "Plan"). (a) Upon the happening of an Extraordinary Common Stock Event (as defined below) after June 12, 2001, the number of outstanding shares of Series A Common shall be adjusted to a number equal to that number of shares of Common Stock determined by multiplying the number of the then Issued and Outstanding Common Shares by twenty percent (20%). The adjustment shall occur automatically without the need for any action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Corporation or its transfer EXHIBIT "A" TO STOCK TRANSFER AGREEMENT agent; provided, however, that the Corporation shall not be obligated to issue certificates evidencing the shares of Series A Common issuable upon such adjustment but shall maintain adequate records, accessible to each holder of Series A Common, setting forth the effective date of the adjustment, the amount of the required adjustment and the computation thereof. The number of shares of outstanding Series A Common, as so adjusted, shall be readjusted in the same manner upon the happening of any successive Extraordinary Common Stock Event or Events. 4.1 (b) "Extraordinary Common Stock Event" shall mean (i) the issuance of additional shares of Common Stock other than shares of Common Stock and options therefore issued pursuant to a Plan; (ii) the issuance of additional shares of Common Stock as a dividend or other distribution on outstanding Common Stock of the Corporation, (iii) a subdivision of outstanding shares of Common Stock into a greater number of sharesshares of Common Stock, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen shall reduce the number (iv) a combination of outstanding shares of Aspen Common Stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) shall not apply to a merger with a subsidiary provided Aspen is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of Aspen.

Appears in 1 contract

Samples: Stock Transfer Agreement (Impco Technologies Inc)

Anti-Dilution Protection. (a) In case the event, prior to the payment of this Note, Aspen Company shall (i) issue any of its additional shares of Aspen Common Stock as a stock dividend or shall subdivide the number of on outstanding shares of Aspen its Common Stock, (ii) subdivide or reclassify the outstanding shares of Common Stock into a greater number of shares, then, in either of such events, or (iii) combine or reclassify the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen shall reduce the number of outstanding shares of Aspen Common Stock by combining such shares into a smaller lesser number of shares, then, in upon any such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note Option Shares shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent proportionately adjusted so that the shares number of Aspen Common Stock are issuable upon Option Shares will continue to represent the conversion of same proportionate inchoate interest in the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately Company as prior to the record date of such dividendevent. (b) In If the event, prior number of Option Shares is adjusted pursuant to the payment preceding paragraph by reason of this Noteany dividend, Aspen distribution, subdivision, combination or reclassification, the record date for which is later than the Effective Date, the Exercise Price in effect at the time of the record date for such dividend, distribution, subdivision, combination or reclassification shall be recapitalized by reclassifying its outstanding Aspen Common Stock adjusted in inverse proportion to the adjustment in the number of Option Shares. (c) If, after the Effective Date, the Company should merge with or into another corporation (other than into a merger or consolidation in which the Company is the continuing or surviving corporation), or sell, lease or convey the property of the Company as an entirety or substantially as an entirety, Optionee shall have the right thereafter to acquire upon exercise of the Option, in lieu of the Option Shares, the kind and amount of shares of common stock with and other securities, property, cash or any combination thereof which would have been received by Optionee upon such consolidation, merger, sale, lease or conveyance had Optionee owned the Option Shares immediately prior to such consolidation, merger, sale, lease or conveyance. (d) In case of any reclassification or change in the Option Shares (other than a different change in par value, or by changing its outstanding shares of common stock from par value to shares without no par value), or as a result of a subdivision or combination, but including any change in the event Aspen shares into two or a successor corporation, partnership, limited liability company more classes or other entity (any series of which is defined as a “Corporation”shares) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context case of any consolidation or merger of any another corporation into the Company in which the Company is the continuing corporation and in which there is a reclassification or change (including a change to the right to receive cash or other Corporation withproperty) in the Option Shares (other than a change in par value, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations)from par value to no par value, or in the event as a result of a subdivision or combination, but including any other material change in the capital structure shares into two or more classes or series of Aspen or of any successor Corporation by reason of any reclassificationshares), reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision Optionee shall be made whereby the Holder of this Note shall thereafter have the right thereafter to receive, acquire upon the basis and the terms and conditions specified in this Note, in lieu exercise of the securities of Aspen theretofore issuable upon Option the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) shall not apply to a merger with a subsidiary provided Aspen is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen which it would have been entitled to receive, the same kind and amount of shares of stock and other securities, property, cash or any sharescombination thereof which would have been received by the Optionee had Optionee owned the Option Shares immediately prior to such reclassification, securities change, consolidation or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of Aspenmerger.

Appears in 1 contract

Samples: Option Agreement (Pacifichealth Laboratories Inc)

Anti-Dilution Protection. (ai) In the eventBorrower shall not issue, prior to the payment of this Note, Aspen shall issue sell or otherwise distribute any of its shares of Aspen Common Stock or any Options if, as a stock dividend result thereof, the Bank Share Percentage will be less than the Minimum Percentage; PROVIDED that Borrower may (A) issue warrant shares upon exercise of the Existing Warrants, (B) issue, sell or shall subdivide grant before or after the number date hereof to any director, officer or employee of Borrower Common Stock or of any Option, bonus or other award exercisable into Common Stock approved by the Board of Directors of Borrower or any duly authorized committee thereof (PROVIDED FURTHER that the aggregate amount of all such Common Stock and Common Stock for which such options, bonuses and other awards are exercisable does not exceed 5% of the Common Stock outstanding on the date hereof), or (C) issue additional shares of Aspen Common Stock into a greater number of shares(but not Options) if Borrower also, thenwithout any further consideration being paid or payable by Bank, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen shall reduce the number of outstanding contemporaneously issues additional shares of Aspen Common Stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent Bank, so that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Noteafter giving effect to both such issuances, the Holder shall receive Bank Share Percentage will not be less than the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividendMinimum Percentage. (bii) In the event, prior to the payment of this Note, Aspen If there shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any to which Borrower is a party, other Corporation with, than a consolidation or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) shall not apply to a merger with a subsidiary provided Aspen of which Borrower is the continuing Corporation corporation and provided further such merger which does not result in any reclassificationreclassification of, capital reorganization or other change in, outstanding shares of Common Stock, or any sale or conveyance of the securities issuable under this Note. The foregoing property of Borrower as an entirety or substantially as an entirety, or any recapitalization of Borrower (any such event being called a "Capital Reorganization"), then, effective upon the effective date of such Capital Reorganization, the provisions of this Section 3(b2.7(h) shall no longer apply to the Common Stock, but shall instead apply to the stock and other securities which the Bank or its Affiliates are entitled to receive pursuant to such Capital Reorganization. As a condition to effecting any Capital Reorganization, Borrower or the successor or surviving corporation, as the case may be, shall execute and deliver to Bank and/or its Affiliates an agreement as to the Bank or such Affiliates with rights in accordance with this Section 2.7(h), providing, to the extent of any right to issuance of additional equity securities hereunder, for issuance rights as nearly equivalent as may be practicable to the adjustments provided for in this Section 2.7(h). The provisions of this Section 2.7(h) shall similarly apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyancesreorganizations. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of Aspen.

Appears in 1 contract

Samples: Loan and Security Agreement (Franklin Ophthalmic Instruments Co Inc)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen that the Company shall issue any of its shares of Aspen Common Stock common stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock common stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note Conversion Price shall be increased proportionately; and, conversely, in the event that Aspen the Company shall reduce the number of outstanding shares of Aspen Common Stock common stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note Conversion Price shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock the common stock in shares of any other class of capital stock of Aspen the Company or securities convertible into shares of Aspen Common Stock common stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Notecommon stock. In the event that Aspen the Company shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon the next conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note conversion occurred immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen that the Company shall be recapitalized by reclassifying its outstanding Aspen Common Stock common stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen the Company or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s 's property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Company or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Company theretofore issuable upon the conversion of this Note, such shares, the Holder upon conversion shall receive the securities or assets as may be issued or payable with respect to or in exchange for paid as a result of the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken placeforegoing; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock common stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) 2 shall not apply to a merger with a subsidiary provided Aspen the Company is the continuing Corporation or involving a subsidiary merger and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b2(b) shall apply to successive reclassificationreclassifications, capital reorganizations and changes of securities and to successive consolidationconsolidations, mergers, sales or conveyances. (c) In the event Aspenthe Company, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Company which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Company; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert conversion provisions of this Note shall terminate on a date fixed by Aspenthe Company, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert conversion provisions of this Note has been given by mail to the Holder of this Note at such Holder’s Xxxxxx's address as it appears on the books of Aspenthe Company. For the avoidance of doubt, if the proposed merger with Vapor is consummated, Vapor shall assume this Note.

Appears in 1 contract

Samples: Note (Vaporin, Inc.)

Anti-Dilution Protection. For the period beginning on the date of the Initial Closing and ending on the date that the Company has consummated a Qualified Public Offering (a) In as defined herein), if the event, prior to the payment of this Note, Aspen Company shall issue any of its Common Stock or securities convertible into or exercisable for shares of Aspen Common Stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than $2.00 per share, being the Purchase Price for the Shares hereunder (the “Lower Price Issuance”) and other than with regard to Exempt Issuances (as a stock dividend or defined herein), then the Company shall subdivide issue the Purchaser such number of outstanding additional shares of Aspen Common Stock into a greater number of shares, then, in either of to reflect such events, lower price for the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen shall reduce the number of outstanding shares of Aspen Common Stock by combining such shares into a smaller number of shares, then, in that the Purchaser shall hold such event, the number of shares of Aspen Common Stock obtainable pursuant Stock, in total, had the Purchaser paid a Purchase Price equal to the conversion Lower Price Issuance (with any fractional shares rounded up to the nearest whole number). For purposes herein, “Exempt Issuance” shall mean (i) the issuance of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock with a different par valueor options to purchase Common Stock) to employees, consultants, officers or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning directors of the term “successor Corporation” used in the context of Company or any consolidation affiliate or merger of any other Corporation with, or the sale of all or substantially all subsidiary of the property of any such other Corporation toCompany pursuant to stock option plans or restricted stock plans, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number which issuance of shares of Aspen Common Stock obtainable upon conversion (or options to purchase Common Stock) is approved by the Board of this Notethe Company and (ii) the issuance of securities pursuant to capital reorganization, reclassification or similar transactions that are primarily for purposes other than raising equity capital; and “Qualified Public Offering” shall mean the Company’s underwritten offering of its securities pursuant to a registration statement under the Securities Act of 1933, as providedamended, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein with aggregate gross proceeds to the contrary, this Section 3(bCompany of at least Five Million Dollars ($5,000,000) shall not apply to a merger with a subsidiary provided Aspen is that involves the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change simultaneous listing of the securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Company’s Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate Stock on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of AspenUnited States national securities exchange.

Appears in 1 contract

Samples: Subscription Agreement (Amesite Inc.)

Anti-Dilution Protection. (a) a. In the event, event that the Company issues shares of Common Stock to investors prior to December 31, 2011 at a cash purchase price per share less than $0.0475 (a “Subsequent Issuance”), the payment of this Note, Aspen Company shall issue any to the Subscriber such amount of its additional shares of Aspen Common Stock as such that the Subscriber will have received a stock dividend or shall subdivide total amount of shares of Common Stock equal to the amount of shares of Common Stock the Subscriber would have received if the cash purchase price per share pursuant to this Subscription Agreement was equal to the price paid per share of Common Stock by investors in the Subsequent Issuance (the “Adjusted Price Per Share”). For the avoidance of doubt, the number of outstanding additional shares of Aspen Common Stock into a greater number of shares, then, in either of such events, to be issued by the shares obtainable pursuant Company to conversion of this Note the Subscriber shall be increased proportionately; and, conversely, in the event that Aspen shall reduce the number of outstanding shares of Aspen Common Stock by combining such shares into a smaller number of shares, then, in such event, difference between the number of shares of Aspen Common Stock obtainable the Subscriber would have received at the Adjusted Price Per Share less the Shares purchased pursuant to this Subscription Agreement. b. In the conversion event the Company sells shares of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen its Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as in a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Notethird party financing (“Offered Securities”), the Holder Subscriber shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu purchase that portion of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets Offered Securities as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion or securities convertible into Common Stock then held by Subscriber bears to the total number of this Noteshares of Common Stock of the Company on a fully-diluted basis (“Pro Rata Share”). Such purchase shall be at the price and on such other terms as shall have been or shall propose to have been issued to such third party investors which shall have been specified by the Company in writing or e-mail transmission delivered to Subscriber (“Notice”). Subscriber shall have ten (10) days subsequent to receipt of the Notice to notify the Company whether Subscriber chooses to purchase its Pro Rata Share (or portion thereof) of the Company’s issuance. Such purchase, as providedif any, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein completed within five (5) days after Subscriber’s notification to the contrary, Company. The Subscriber’s rights in this Section 3(b) section shall not apply to Common Stock issued as a stock dividend, shares of capital stock or securities convertible thereto issued to employees, officers, directors or consultants, securities issued pursuant to the acquisition of another entity by the Company by merger with a subsidiary provided Aspen is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change purchase of the securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assetssuch entity’s stock or assets if such acquisition is approved by the Board of Directors, any securities issued in connection with a strategic partnership, joint venture or other similar agreement approved by the Board of Directors, securities issued in connection with a bank loan or lease with a financial institution, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision capital stock issued pursuant to convertible securities outstanding on the date hereof. The right set forth herein shall be made as part terminate when Subscriber no longer holds five percent (5%) of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu then issued and outstanding shares of the Company’s Common Stock (including on an as-converted basis any securities of Aspen which it would have been entitled to receive, convertible into the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Company’s Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of Aspen).

Appears in 1 contract

Samples: Subscription Agreement (Applied Dna Sciences Inc)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen the Company shall issue any of its shares of Aspen Common Stock common stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock common stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen the Company shall reduce the number of outstanding shares of Aspen Common Stock common stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock common stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock the common stock in shares of any other class of capital stock of Aspen the Company or securities convertible into shares of Aspen Common Stock common stock shall be treated as a dividend paid in Aspen Common Stock common stock to the extent that the shares of Aspen Common Stock common stock are issuable upon the conversion of the Note. In the event that Aspen the Company shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen the Company shall be recapitalized by reclassifying its outstanding Aspen Common Stock common stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen the Company or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Company or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receivepurchase, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Company theretofore issuable purchasable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen the Company theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock common stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) 2 shall not apply to a merger with a subsidiary provided Aspen the Company is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b2(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspenthe Company, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolvedissolves, liquidateliquidates, or wind winds up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Company which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Company; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspenthe Company, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such HolderXxxxxx’s address as it appears on the books of Aspenthe Company.

Appears in 1 contract

Samples: Convertible Note (Ecosphere Technologies Inc)

Anti-Dilution Protection. (a) In If the event, prior to the payment of this Note, Aspen Company shall at any time issue or sell any of its shares of Aspen Common Stock as or Equity Securities, other than an issuance or sale in an Exempted Issuance, at a stock dividend price per share of Common Stock, or shall subdivide in the number of outstanding case other Equity Securities exchangeable or convertible into shares of Aspen Common Stock, at a conversion or exercise price for a share of Common Stock into a greater number of shares, then, (in either of such eventseach case, the shares obtainable pursuant to conversion "New Issue Price") that is less than the then effective Conversion Price of this Note shall be increased proportionately; and, converselySeries D Preferred Stock (as defined in the Certificate of Designation of Series D Preferred Stock) (treating the price per share of Common Stock, in the event that Aspen shall reduce case of the number issuance of outstanding shares any Equity Securities, as equal to (x) the sum of Aspen Common Stock the price for such Equity Securities plus any additional consideration payable (without regard to any anti-dilution adjustments) upon the conversion, exchange or exercise of such Equity Securities divided by combining such shares into a smaller number of shares, then, in such event, (y) the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Noteinitially underlying such Equity Securities), the Holder Investor shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receivepurchase from XD Engineering and/or Xx. Xxx, upon and XD Engineering and/or Xx. Xxx shall sell and transfer to the basis and the terms and conditions specified in this NoteInvestor, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Noteat par value per share, such shares, securities or assets as may be issued or payable with respect to or in exchange for the a number of securities shares of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note Common Stock that is equal to any adjustment in (i) the number of shares of Aspen Common Stock obtainable upon conversion of this Note, that the Series D Preferred Stock held by the Investor would have been convertible into as provided, shall continue and be preserved in respect of any shares, securities or assets which if the Holder becomes entitled to obtain. Notwithstanding anything herein then effective Conversion Price is equal to the contraryNew Issue Price, this Section 3(bminus (ii) the number of shares of Common Stock that the outstanding Series D Preferred Stock held by the Investor are convertible into under the then effective Conversion Price. Such sale and purchase shall not apply to a merger with a subsidiary provided Aspen is be completed within 10 Business Days after the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization date of issuance of the Common Stock or other change Equity Securities or a later date requested by the Investor. In case the consideration received by the Company from such sale or issuance is not cash, the amount of the securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision consideration shall be made as part the Fair Market Value of such non-cash consideration. If the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu Equity Securities of the securities Company other than the Series D Preferred Stock are amended, modified or adjusted by operation of Aspen which it would have been entitled to receive, their terms (including any anti-dilution adjustment) or in any other manner that results in a reduction of the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice Issue Price of such termination of the right to convert this Note has been given by mail Equity Securities, XD Engineering and/or Xx. Xxx shall sell and transfer to the Holder Investor, and the Investor shall purchase from XD Engineering and/or Xx. Xxx, additional number of shares of Common Stock at par value in accordance with this Note at Section 3.4, as if the New Issue Price after such Holder’s address as it appears on reduction had been the books original New Issue Price of Aspensuch Equity Securities.

Appears in 1 contract

Samples: Stockholders' Agreement (China XD Plastics Co LTD)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen the Company shall issue any of its shares of Aspen Common Stock common stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock common stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen the Company shall reduce the number of outstanding shares of Aspen Common Stock common stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock common stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock the common stock in shares of any other class of capital stock of Aspen the Company or securities convertible into shares of Aspen Common Stock common stock shall be treated as a dividend paid in Aspen Common Stock common stock to the extent that the shares of Aspen Common Stock common stock are issuable upon the conversion of the Note. In the event that Aspen the Company shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen the Company shall be recapitalized by reclassifying its outstanding Aspen Common Stock common stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen the Company or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a "Corporation") shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s 's property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term "successor Corporation" used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Company or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receivepurchase, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Company theretofore issuable purchasable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen the Company theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock common stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) paragraph 2 shall not apply to a merger with a subsidiary provided Aspen the Company is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(bparagraph 2(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspenthe Company, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolvedissolves, liquidateliquidates, or wind winds up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Company which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Company; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspenthe Company, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s 's address as it appears on the books of Aspenthe Company.

Appears in 1 contract

Samples: Convertible Note (Ultrastrip Systems Inc)

Anti-Dilution Protection. (a) In The Company hereby agrees as follows if, at any time within one year after the event, prior to the payment date of this NoteAgreement, Aspen the Company issues or sells any shares of Common Stock or securities convertible into or exercisable for Common Stock (collectively, “New Securities”) at a price per share (or conversion or exercise price, as applicable) that is lower than the Purchase Price paid by the Investors for the shares of Common Stock under this Agreement, then the Company shall issue to each Investor, without any additional consideration, such number of its additional shares of Aspen Common Stock as a stock dividend or shall subdivide is equal to the number product of outstanding shares of Aspen Common Stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen shall reduce the number of outstanding shares of Aspen Common Stock by combining such shares into a smaller number of shares, then, in such event, (i) the number of shares of Aspen Common Stock obtainable pursuant purchased by such Investor under this Agreement, and (ii) a fraction, the numerator of which is the difference between the Purchase Price and the price per share of the New Securities, and the denominator of which is the Purchase Price (the “Adjustment Shares”). The issuance of the Adjustment Shares shall be subject to the conversion same terms and conditions as the shares of Common Stock purchased by the Investors under this Agreement, including any representations, warranties, covenants, and registration rights. The Company shall notify each Investor in writing of any issuance or sale of New Securities within 10 days after the closing of such issuance or sale and shall deliver the Adjustment Shares to the Investors within 30 days after such notice. The following issuances or sales of New Securities shall not trigger the anti-dilution provisions of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Section 8: a. Shares of Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen or exercisable for Common Stock shall be treated as a dividend paid in Aspen issued or sold to employees, directors, consultants, or advisors of the Company or its subsidiaries pursuant to stock option plans, restricted stock plans, or other equity incentive plans approved by the board of directors of the Company; b. Shares of Common Stock to the extent that the shares of Aspen or securities convertible into or exercisable for Common Stock are issuable issued or sold upon the conversion or exercise of securities outstanding as of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion date of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date Agreement; c. Shares of such dividend. (b) In the event, prior to the payment of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than or securities convertible into shares of common or exercisable for Common Stock issued or sold in connection with any stock with a different par valuesplit, or by changing its outstanding shares of common stock to shares without par value)dividend, or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassificationrecapitalization, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) shall not apply to a merger with a subsidiary provided Aspen is the continuing Corporation and provided further such merger similar event that does not result in any reclassification, capital reorganization or other a change in the proportionate ownership of the Common Stock; d. Shares of Common Stock or securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassificationconvertible into or exercisable for Common Stock issued or sold in connection with any bona fide strategic partnership, capital reorganizations and changes of securities and to successive consolidationjoint venture, mergersmerger, sales or conveyances. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assetsacquisition, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part similar transaction that is approved by the board of directors of the terms Company and that does not primarily involve raising capital; or e. Shares of any such sale, dissolution, liquidation, Common Stock or winding up such that securities convertible into or exercisable for Common Stock issued or sold in a public offering registered under the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of AspenSecurities Act.

Appears in 1 contract

Samples: Subscription Agreement (Cyanotech Corp)

Anti-Dilution Protection. (a) In the event, prior Subject to the payment of this Note, Aspen shall issue any of its shares of Aspen Common Stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, converselySection 6.8(b), in the event that Aspen on or before the date that is two (2) months after the date on which the First Gaming Resort is open to the general public for both overnight accommodation and casino gaming, the Company enters into a binding commitment for Debt Financing and/or Equity Financing, excluding for all purposes: (i) all Debt Financings where the applicable principal, interest and/or other amounts to become due and owing are convertible or exchangeable into Common Shares at a conversion or exchange price per Common Share which is equal to or greater than the Conversion Denominator (as such term is defined in section 24.4 of the Company’s Articles (and any successor provision thereof)) as shall reduce be determined as of the closing date of the relevant Debt Financing transaction; and (ii) all Equity Financings with third parties pursuant to which Common Shares or other securities convertible or exchangeable into Common Shares are issued, at an issue price per Common Share or at a conversion or exchange price per Common Share which is equal to or greater than the Conversion Denominator (as such term is defined in section 24.4 of the Company’s Articles (and any successor provision thereof)) as shall be determined as of the closing date of the relevant Equity Financing; (in each case, a “Qualifying Issuance”) then the Additional Backstop Entitlement of each Backstop Lender, subject to allocation in accordance with Section 6.8(e), shall be increased by: (A) in the case of a Backstop Lender that is not Pinnacle or any of its Entity Affiliates, the lowest number of Common Shares that, when added to the number of Common Shares and Class VII Non-Voting Shares owned by such Backstop Lender, on a Fully Diluted Basis, at the time of the closing of such Qualifying Issuance, would result in such Backstop Lender owning, on a Fully Diluted Basis, a percentage of the outstanding shares Common Shares and Class VII Non-Voting Shares (after giving effect to such Qualifying Issuance and any other adjustment(s) made in respect of Aspen any other Backstop Lender(s) pursuant to this Section 6.8), on a Fully Diluted Basis, equal to the percentage of the outstanding Common Stock Shares and Class VII Non-Voting Shares, on a Fully Diluted Basis, owned by combining such shares into Backstop Lender, on a smaller Fully Diluted Basis, immediately prior to the closing of such Qualifying Issuance; and (B) in the case of a Backstop Lender that is Pinnacle or any of its Entity Affiliates, the lowest number of sharesCommon Shares that, then, in such event, when added to the number of shares Common Shares and Class VII Non-Voting Shares owned by Pinnacle and its Entity Affiliates, on a Fully Diluted Basis, at the time of Aspen the closing of such Qualifying Issuance, would result in Pinnacle owning, on a Fully Diluted Basis, a percentage of the outstanding Common Stock obtainable pursuant Shares and Class VII Non-Voting Shares (after giving effect to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock such Qualifying Issuance and any other adjustment(s) made in shares respect of any other class Backstop Lender(s) pursuant to this Section 6.8), on a Fully Diluted Basis, equal to the percentage (the “Pinnacle Reference Percentage”) of capital stock the outstanding Common Shares and Class VII Non-Voting Shares, on a Fully Diluted Basis, owned by Pinnacle and its Entity Affiliates, on a Fully Diluted Basis, immediately prior to the closing of Aspen or securities convertible into shares such Qualifying Issuance (provided, that if any such increase in the Additional Backstop Entitlement affects more than one holder of Aspen Common Stock an Additional Backstop Warrant that is Pinnacle and its Entity Affiliates, then such increase in the Additional Backstop Entitlement shall be treated apportioned among such holders on a pro rata basis in accordance with their holdings of Common Shares and Class VII Non-Voting Shares on a Fully Diluted Basis). The parties agree that if Pinnacle (or any of its Entity Affiliates) acquires an Additional Backstop Warrant after a Qualifying Issuance, then (i) the Additional Backstop Entitlement with respect to Pinnacle (or any of its Entity Affiliates) shall be increased in accordance with this Section 6.8(a)(ii)(B) instead of Section 6.8(a)(ii)(A), as a dividend paid in Aspen Common Stock though Pinnacle (or its Entity Affiliates) had acquired such Additional Backstop Warrants on or prior to the date of the closing of such Qualifying Issuance and (ii) the Pinnacle Reference Percentage shall give effect to the acquisition of such Additional Backstop Warrant as if such acquisition occurred immediately prior to the closing of such Qualifying Issuance, provided, however, that to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other propertyBackstop Lender owns Class VII Non-Voting Shares on a Fully Diluted Basis, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date closing of such dividendQualifying Issuance, then in lieu of Common Shares solely, the Additional Backstop Entitlement of such Backstop Lender shall be increased by an aggregate number of Common Shares and Class VII Non-Voting equaling the Common Share adjustment referenced above in such proportion as most closely approximates the proportion of Common Shares and Class VII Non-Voting Shares such Backstop Lender owns on a Fully Diluted Basis, immediately prior to the closing of such Qualifying Issuance and provided further, however, that for purposes of this Section 6.8, each reference to the number of Common Shares and Class VII Non-Voting Shares owned by such Backstop Lender shall, as applicable, be interpreted to mean and be determined, as follows: (1) in respect of the Backstop Lender that is Harbinger II S.à x.x.: a) the portion of the aggregate number of Common Shares and Class VII Non-Voting Shares held by Harbinger II S.à x.x. that is attributable to Master Fund on the basis of the aggregate debt and equity interests held by Master Fund in Harbinger II S.à x.x, as shall be determined by Harbinger II S.à x.x.; and b) the portion of the aggregate number of Common Shares and Class VII Non-Voting Shares held by Harbinger II S.à x.x. that is attributable to Harbinger Capital Partners Special Situations Fund, L.P. by its general partner, Special Situations Fund, on the basis of the aggregate debt and equity interests held by Special Situations Fund in Harbinger II S.à x.x., as shall be determined by Harbinger II S.à x.x.; (2) in respect of the Backstop Lender that is Blue Line ACDL, Inc., the aggregate number of Common Shares and Class VII Non-Voting Shares held by Blue Line ACDL, Inc. and Credit Distressed Blue Line Master Fund, Ltd., collectively, and (3) in respect of the Backstop Lender that is Breakaway ACDL, Inc., the aggregate number of Common Shares and Class VII Non-Voting Shares held by Breakaway ACDL, Inc. and Global Opportunities Breakaway Ltd, collectively. (b) In the event, prior to the payment of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock with a different par value, For each Backstop Lender that is not Pinnacle or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of its Entity Affiliates, the adjustment pursuant to this Section 6.8 shall apply on any one or more occasions on which is defined as a “Corporation”) Qualifying Issuance occurs, and such adjustment or adjustments shall consolidate apply notwithstanding that a Backstop Lender may have previously purchased some or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right Common Shares purchasable pursuant to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) shall not apply to a merger with a subsidiary provided Aspen is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyancesits Additional Backstop Warrant. (c) In the event Aspencase of a Backstop Lender that is Pinnacle or any of its Entity Affiliates, the adjustment pursuant to this Section 6.8 shall (i) only be available to such Backstop Lender if an adjustment has been made pursuant to this Section 6.8 for any Backstop Lender that is not Pinnacle or any of its Affiliates and (ii) apply on any one or more occasions on which a Qualifying Issuance occurs, and such adjustment or adjustments shall apply notwithstanding that a Backstop Lender may have previously purchased some or all of the Common Shares purchasable pursuant to its Additional Backstop Warrant. (d) For greater clarity, an Additional Backstop Warrant may be exercised with respect to an increase in the Additional Backstop Entitlement at any time while this Note shall remain outstandingprior to, shall sell all concurrently with or substantially all of its assetsfollowing a Qualifying Issuance, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of in each case in accordance with the terms of any the Additional Backstop Warrant. (e) In the event of an assignment or transfer of an Additional Backstop Warrant which results in the issuance of a new warrant to an assignee or transferee, such sale, dissolution, liquidation, assignee or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen which it would have been transferee shall be entitled to receive, the same kind and amount its proportionate share of any sharesadjustment under this Section 6.8 to which the prior holder was entitled, securities or assets as may be issuable, distributable or payable upon any determined by reference to the number of Common Shares which such sale, dissolution, liquidation or winding up with respect holder is entitled to each share of Aspen Common Stockpurchase; provided, however, that the adjustment under this Section 6.8 to the Additional Backstop Entitlement of Additional Backstop Warrants held by Pinnacle and/or its Entity Affiliates shall be determined under Section 6.8(a)(ii)(B). (f) Notwithstanding the foregoing, any holder of an Additional Backstop Warrant may, in its sole and unfettered discretion, waive all or any part of the event adjustment obligation in its favour as set out in this Section 6.8. (g) The adjustment in this Section 6.8 shall apply in addition to and notwithstanding the completion of any such sale, dissolution, liquidation or winding up, other adjustment provided for in this Agreement. (h) The parties acknowledge and agree that the right to convert rights granted by this Note Section 6.8 shall terminate on and this Section 6.8 shall be of no further force and effect following the conversion of all Series V Preferred Shares and Class VI Preferred Shares in a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of AspenQualifying Conversion.

Appears in 1 contract

Samples: Shareholder Agreement (Pinnacle Entertainment Inc.)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen the Company shall issue any of its shares of Aspen Common Stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen the Company shall reduce the number of outstanding shares of Aspen Common Stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen the Common Stock in shares of any other class of capital stock of Aspen the Company or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen the Company shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen the Company shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock Common Stock with a different par value, or by changing its outstanding shares of common stock Common Stock to shares without par value), or in the event Aspen the Company or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Company or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receivepurchase, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Company theretofore issuable purchasable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen the Company theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) 2 shall not apply to a merger with a subsidiary provided Aspen the Company is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b2(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspenthe Company, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolvedissolves, liquidateliquidates, or wind winds up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Company which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Company; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspenthe Company, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of Aspenthe Company.

Appears in 1 contract

Samples: Secured Line of Credit Agreement (Ecosphere Technologies Inc)

Anti-Dilution Protection. (a) In A. To ensure that the eventvalue of the Holders conversion rights are not impaired by action of the Company, prior the Holder of the Series A Preferred Stock shall have the protection of the provisions in this Article “9” of this Certificate of Designation designed to make appropriate adjustments to the payment conversion rights in the specified circumstances referred to in this Article “9” of this Note, Aspen shall issue any Certificate of its shares of Aspen Common Stock as a stock dividend or shall subdivide Designation. B. If the number of outstanding shares of Aspen Common Stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen shall reduce the number of outstanding shares of Aspen Common Stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated changed as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities result of any other entity stock dividend, stock split, recapitalization or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material similar change in the capital structure of Aspen the Company without the receipt of consideration, the number and class of shares of Common Stock issuable upon conversion pursuant to this Certificate of Designation shall be adjusted as to reflect such change. C. Shares of Series A Preferred Stock shall not be diluted upon the occurence of any event, including, but not limited to: (i) a merger, reorganization or consolidation of the Company with or into another entity or entities, whether or not the Company is the surviving entity; (ii) the issuance of any previously authorized or newly authorized shares of the capital stock of the Company; (iii) a recapitalization of the outstanding shares of the capital stock of the Company, which has the effect of changing the percentage of shares of capital stock which are owned by Holders of shares of the Series A Preferred Stock in relation to the total number of outstanding shares of the capital stock of the Company; (iv) the payment of any stock dividend or stock split; (v) the distribution to all Holders of securities of evidences of indebtedness of the Company or of any successor Corporation by reason assets (excluding cash dividends paid from retained earnings); and (vi) the issuance after the date of any reclassificationstock options, reorganizationwarrants or other rights to acquire shares of the capital stock of the Company. D. In addition to any other rights of the Holders of the Series A Preferred Stock set forth in this Certificate of Designation, recapitalizationany reverse stock split shall not reduce the number of shares which the Series A Preferred Stock is convertible into regardless of the extent of the reverse stock split. For example, consolidationif there are 120,000,000 shares of the Company’s Common Stock issued and outstanding and 10,000,000 shares of the Series A Preferred Stock issued and outstanding which are convertible into 60,000,000 shares of Common Stock and there is a 1:4 reverse split of the Common Stock, mergerdecreasing the number of shares of the Company’s issued and outstanding Common Stock from 120,000,000 to 30,000,000 shares, conveyance the Series A Preferred Stock shall retain the right to convert to 60,000,000 shares of Common Stock so that after the conversion of the Series A Preferred Stock the Holders of the Series A Preferred Stock will own two thirds (60,000,000 out of a total of 90,000,000) of the issued and outstanding shares of Common Stock in spite of the fact that, prior to the reverse split, the Holders of the Series A Preferred Stock would have owned one third (60,000,000 out of a total of 180,000,000) of the issued and outstanding shares. E. Upon the occurrence of any of the events which are described in Paragraph “C” of this Article “9” of this Certificate of Designation or otherwiseany other event which might result in a reduction in the number of shares issuable upon conversion of capital stock of the Company which is then owned (any of such events is hereinafter referred to as a "Dilution Event"), then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note Company shall immediately take whatever measures are necessary to any adjustment in insure that the number of shares of Aspen Common Stock obtainable issuable upon conversion of this Note, as provided, shares of Series A Preferred Stock shall continue not be affected and be preserved in respect that such number of any shares, securities or assets shares issuable upon conversion of shares of Series A Preferred Stock is not reduced below the number of shares issuable upon conversion which the Holder becomes entitled to obtainHolders would own had no Dilution Event occurred. Notwithstanding anything herein Any adjustment which is required by this Article “9” of this Certificate of Designation shall be deemed effective retroactive to the contrary, this Section 3(b) shall not apply to a merger with a subsidiary provided Aspen is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change date of the securities issuable under this NoteDilution Event. These adjustments shall be made successively if more than one Dilution Event occurs. The foregoing provisions of this Section 3(b) shall apply to successive reclassification, capital reorganizations and changes Article “9” of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all Certificate of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision Designation shall be made as part of applicable to any Dilution Event which occurs commencing upon the terms of any such sale, dissolution, liquidation, or winding up such that the Holder filing date of this Note may thereafter receive, upon exercise hereof, in lieu Certificate of the securities of Aspen which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Common Stock; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of AspenDesignation.

Appears in 1 contract

Samples: Equity Line Agreement (Advantage Disposal Solutions, Inc.)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen the Company shall issue any of its shares of Aspen Common Stock common stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock common stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen the Company shall reduce the number of outstanding shares of Aspen Common Stock common stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock common stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock the common stock in shares of any other class of capital stock of Aspen the Company or securities convertible into shares of Aspen Common Stock common stock shall be treated as a dividend paid in Aspen Common Stock common stock to the extent that the shares of Aspen Common Stock common stock are issuable upon the conversion of the Note. In the event that Aspen the Company shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen the Company shall be recapitalized by reclassifying its outstanding Aspen Common Stock common stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen the Company or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Company or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receivepurchase, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Company theretofore issuable purchasable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen the Company theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock common stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) paragraph 2 shall not apply to a merger with a subsidiary provided Aspen the Company is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(bparagraph 2(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspenthe Company, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolvedissolves, liquidateliquidates, or wind winds up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Company which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Company; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspenthe Company, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of Aspenthe Company. (d) In the event the Company issues or sells any securities including options, warrants or convertible securities at a price of or with an exercise or conversion price of less than $0.15 per share, then forthwith upon such issue or sale, the Exercise Price of all the warrants shall be reduced to the sale price or the exercise or conversion price of the securities issued or sold.

Appears in 1 contract

Samples: Secured Line of Credit Agreement (Ecosphere Technologies Inc)

Anti-Dilution Protection. (a) In the event, prior Subject to the payment of this Note, Aspen shall issue any of its shares of Aspen Common Stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, converselySection 6.6(b), in the event that Aspen on or before the date that is two (2) months after the date on which the First Gaming Resort is open to the general public for both overnight accommodation and casino gaming, the Company enters into a binding commitment for Debt Financing and/or Equity Financing, excluding for all purposes: (i) all Debt Financings where the applicable principal, interest and/or other amounts to become due and owing are convertible or exchangeable into Common Shares at a conversion or exchange price per Common Share which is equal to or greater than the Conversion Denominator (as such term is defined in section 24.4 of the Company’s Articles (and any successor provision thereof)) as shall reduce be determined as of the closing date of the relevant Debt Financing transaction; and (ii) all Equity Financings with third parties pursuant to which Common Shares or other securities convertible or exchangeable into Common Shares are issued, at an issue price per Common Share or at a conversion or exchange price per Common Share which is equal to or greater than the Conversion Denominator (as such term is defined in section 24.4 of the Company’s Articles (and any successor provision thereof)) as shall be determined as of the closing date of the relevant Equity Financing; (in each case, a “Qualifying Issuance”) then the Additional Backstop Entitlement of each Backstop Lender, subject to allocation in accordance with Section 6.6(e), shall be increased by: (A) in the case of a Backstop Lender that is not Pinnacle or any of its Entity Affiliates, the lowest number of Common Shares of the Company that, when added to the number of outstanding shares Common Shares owned by such Backstop Lender, on a Fully Diluted Basis, at the time of Aspen Common Stock by combining the closing of such shares into a smaller number of sharesQualifying Issuance, then, would result in such eventBackstop Lender owning, on a Fully Diluted Basis, a percentage of the number of shares of Aspen outstanding Common Stock obtainable pursuant Shares (after giving effect to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock such Qualifying Issuance and any other adjustment(s) made in shares respect of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as Backstop Lender(s) pursuant to this Section 6.6), on a dividend paid in Aspen Common Stock Fully Diluted Basis, equal to the extent that the shares of Aspen Common Stock are issuable upon the conversion percentage of the Note. In the event that Aspen shall pay outstanding Common Shares, on a dividend consisting of the securities of any other entity or in cash or other propertyFully Diluted Basis, upon conversion of this Noteowned by such Backstop Lender, the Holder shall receive the securitieson a Fully Diluted Basis, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record closing of such Qualifying Issuance; and (B) in the case of a Backstop Lender that is Pinnacle or any of its Entity Affiliates, the lowest number of Common Shares of the Company that, when added to the number of Common Shares owned by Pinnacle and its Entity Affiliates, on a Fully Diluted Basis, at the time of the closing of such Qualifying Issuance, would result in Pinnacle owning, on a Fully Diluted Basis, a percentage of the outstanding Common Shares (after giving effect to such Qualifying Issuance and any other adjustment(s) made in respect of any other Backstop Lender(s) pursuant to this Section 6.6), on a Fully Diluted Basis, equal to the percentage (the “Pinnacle Reference Percentage”) of the outstanding Common Shares, on a Fully Diluted Basis, owned by Pinnacle and its Entity Affiliates, on a Fully Diluted Basis, immediately prior to the closing of such Qualifying Issuance (provided, that if any such increase in the Additional Backstop Entitlement affects more than one holder of an Additional Backstop Warrant that is Pinnacle and its Entity Affiliates, then such increase in the Additional Backstop Entitlement shall be apportioned among such holders on a pro rata basis in accordance with their holdings of Common Shares on a Fully Diluted Basis). The parties agree that if Pinnacle (or any of its Entity Affiliates) acquires an Additional Backstop Warrant after a Qualifying Issuance, then (i) the Additional Backstop Entitlement with respect to Pinnacle (or any of its Entity Affiliates) shall be increased in accordance with this Section 6.6(a)(ii)(B) instead of Section 6.6(a)(ii)(A), as though Pinnacle (or its Entity Affiliates) had acquired such Additional Backstop Warrants on or prior to the date of the closing of such dividendQualifying Issuance and (ii) the Pinnacle Reference Percentage shall give effect to the acquisition of such Additional Backstop Warrant as if such acquisition occurred immediately prior to the closing of such Qualifying Issuance; provided, however, that for purposes of this Section 6.6, each reference to the number of Common Shares of the Company owned by such Backstop Lender shall, as applicable, be interpreted to mean and be determined, as follows: (1) in respect of the Backstop Lender that is Harbinger II S.à x.x.: a) the portion of the aggregate number of Common Shares held by Harbinger II S.à x.x. that is attributable to Master Fund on the basis of the aggregate convertible preferred equity certificates held by Master Fund in Harbinger II S.à x.x, as shall be determined by Harbinger II S.à x.x.; and b) the portion of the aggregate number of Common Shares held by Harbinger II S.à x.x. that is attributable to Harbinger Capital Partners Special Situations Fund, L.P. by its general partner, Special Situations Fund, on the basis of the aggregate convertible preferred equity certificates held by Special Situations Fund in Harbinger II S.à x.x., as shall be determined by Harbinger II S.à.x.x.; (2) in respect of the Backstop Lender that is Blue Line ACDL, Inc., the aggregate number of Common Shares held by Blue Line ACDL, Inc. and Credit Distressed Blue Line Master Fund, Ltd., collectively, and (3) in respect of the Backstop Lender that is Breakaway ACDL, Inc., the aggregate number of Common Shares held by Breakaway ACDL, Inc. and Global Opportunities Breakaway Ltd, collectively. (b) In For each Backstop Lender that is not Pinnacle or any of its Entity Affiliates, the event, prior adjustment pursuant to the payment of this Note, Aspen Section 6.6 shall (i) only be recapitalized by reclassifying its outstanding Aspen Common Stock available to such Backstop Lender if such Backstop Lender has made (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen case of Harbinger II S.à x.x., if Master Fund and/or Special Situations Fund have made for and on its behalf) the Backstop Advance prescribed for such Backstop Lender (or a successor corporationin the case of Harbinger II S.à x.x., partnership, limited liability company or other entity (any of which is defined as a “Corporation”prescribed for Master Fund and Special Situations Fund) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning under section 2.1 of the term “successor Corporation” used in the context of Backstop Loan Agreement and (ii) apply on any consolidation one or merger of any other Corporation withmore occasions on which a Qualifying Issuance occurs, and such adjustment or the sale of all adjustments shall apply notwithstanding that a Backstop Lender may have previously purchased some or substantially all of the property of any such other Corporation toCommon Shares purchasable pursuant to its Additional Backstop Warrant. Notwithstanding the foregoing, another Corporation or Corporations)and for greater certainty, or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any sharesHarbinger II S.à x.x., securities or assets which the Holder becomes entitled respective adjustment pursuant to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) 6.6 that is severally attributable to Master Fund or Special Situations Fund, as the case may be, shall not apply to be available thereto if such Person has advanced, for and on behalf of Harbinger, the entire amount of a merger with a subsidiary provided Aspen is the continuing Corporation and provided further Backstop Advance due by such merger does not result Person as set out in any reclassification, capital reorganization or other change section 2.1 of the securities issuable under this Note. The foregoing provisions Backstop Loan Agreement regardless of this Section 3(b) shall apply whether the other Person has advanced, for and on behalf of Harbinger II S.à x.x., the entire amount of a Backstop Advance due by such other Person pursuant to successive reclassification, capital reorganizations and changes section 2.1 of securities and to successive consolidation, mergers, sales or conveyancesthe Backstop Loan Agreement. (c) In the event Aspencase of a Backstop Lender that is Pinnacle or any of its Entity Affiliates, the adjustment pursuant to this Section 6.6 shall (i) only be available to such Backstop Lender if an adjustment has been made pursuant to this Section 6.6 for any Backstop Lender that is not Pinnacle or any of its Affiliates and (ii) apply on any one or more occasions on which a Qualifying Issuance occurs, and such adjustment or adjustments shall apply notwithstanding that a Backstop Lender may have previously purchased some or all of the Common Shares purchasable pursuant to its Additional Backstop Warrant. (d) For greater clarity, an Additional Backstop Warrant may be exercised with respect to an increase in the Additional Backstop Entitlement at any time while this Note shall remain outstandingprior to, shall sell all concurrently with or substantially all of its assetsfollowing a Qualifying Issuance, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of in each case in accordance with the terms of any the Additional Backstop Warrant. (e) In the event of an assignment or transfer of an Additional Backstop Warrant which results in the issuance of a new warrant to an assignee or transferee, such sale, dissolution, liquidation, assignee or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen which it would have been transferee shall be entitled to receive, the same kind and amount its proportionate share of any sharesadjustment to which the prior holder was entitled, securities or assets as may be issuable, distributable or payable upon any determined by reference to the number of Common Shares which such sale, dissolution, liquidation or winding up with respect holder is entitled to each share of Aspen Common Stockpurchase; provided, however, that the adjustment to the Additional Backstop Entitlement of Additional Backstop Warrants held by Pinnacle and/or its Entity Affiliates shall be determined under Section 6.6(a)(ii)(B). (f) Notwithstanding the foregoing, any holder of an Additional Backstop Warrant may, in its sole and unfettered discretion, waive all or any part of the event adjustment obligation in its favour as set out in this Section 6.6. (g) The adjustment in this Section 6.6 shall apply in addition to and notwithstanding the completion of any such sale, dissolution, liquidation or winding up, the right to convert other adjustment provided for in this Note shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of AspenAgreement.

Appears in 1 contract

Samples: Shareholder Agreement (Pinnacle Entertainment Inc.)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen the Company shall issue any of its shares of Aspen Common Stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note shall be increased proportionately; and, conversely, in the event that Aspen the Company shall reduce the number of outstanding shares of Aspen Common Stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen the Common Stock in shares of any other class of capital stock of Aspen the Company or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen the Company shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen the Company shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock Common Stock with a different par value, or by changing its outstanding shares of common stock Common Stock to shares without par value), or in the event Aspen the Company or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Company or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receivepurchase, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Company theretofore issuable purchasable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen the Company theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) 2 shall not apply to a merger with a subsidiary provided Aspen the Company is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b2(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspenthe Company, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolvedissolves, liquidateliquidates, or wind winds up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Company which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Company; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert this Note shall terminate on a date fixed by Aspenthe Company, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert this Note has been given by mail to the Holder of this Note at such Holder’s address as it appears on the books of Aspenthe Company. (d) In the event the Company issues or sells any securities including options, warrants or convertible securities at a price of or with an exercise or conversion price of less than $0.15 per share, then forthwith upon such issue or sale, the Conversion Price of this Note shall be reduced to the sale price or the exercise or conversion price of the securities issued or sold.

Appears in 1 contract

Samples: Secured Line of Credit Agreement (Ecosphere Technologies Inc)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen that the Company shall issue any of its shares of Aspen Common Stock common stock as a stock dividend or shall subdivide the number of outstanding shares of Aspen Common Stock common stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note Conversion Price shall be increased proportionately; and, conversely, in the event that Aspen the Company shall reduce the number of outstanding shares of Aspen Common Stock common stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant to the conversion of this Note Conversion Price shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock the common stock in shares of any other class of capital stock of Aspen the Company or securities convertible into shares of Aspen Common Stock common stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Notecommon stock. In the event that Aspen the Company shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon the next conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note conversion occurred immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen that the Company shall be recapitalized by reclassifying its outstanding Aspen Common Stock common stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen the Company or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s 's property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale of all or substantially all of the property of any such other Corporation to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen the Company or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen the Company theretofore issuable upon the conversion of this Note, such shares, the Holder upon conversion shall receive the securities or assets as may be issued or payable with respect to or in exchange for paid as a result of the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken placeforegoing; and in any such event, the rights of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock common stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) 2 shall not apply to a merger with a subsidiary provided Aspen the Company is the continuing Corporation or involving a subsidiary merger and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b2(b) shall apply to successive reclassificationreclassifications, capital reorganizations and changes of securities and to successive consolidationconsolidations, mergers, sales or conveyances. (c) In the event Aspenthe Company, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assets, or dissolve, liquidate, or wind up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder of this Note may thereafter receive, upon exercise hereof, in lieu of the securities of Aspen the Company which it would have been entitled to receive, the same kind and amount of any shares, securities or assets as may be issuable, distributable or payable upon any such sale, dissolution, liquidation or winding up with respect to each common share of Aspen Common Stockthe Company; provided, however, that in the event of any such sale, dissolution, liquidation or winding up, the right to convert conversion provisions of this Note shall terminate on a date fixed by Aspenthe Company, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day after the date on which notice of such termination of the right to convert conversion provisions of this Note has been given by mail to the Holder of this Note at such Holder’s Hxxxxx's address as it appears on the books of Aspenthe Company. For the avoidance of doubt, if the proposed merger with Vapor is consummated, Vapor shall assume this Note.

Appears in 1 contract

Samples: Note (Vapor Corp.)

Anti-Dilution Protection. (a) In the event, prior to the payment of this Note, Aspen shall issue any of its shares of Aspen Common Stock as a stock dividend or shall subdivide The Exercise Price and the number of outstanding shares Common Shares issuable to the Holder upon the exercise of Aspen Common Stock into a greater number of shares, then, in either of such events, the shares obtainable pursuant to conversion of this Note Warrants shall be increased proportionately; and, conversely, subject to adjustment from time to time in the event that Aspen shall reduce events and in the number of outstanding shares of Aspen manner provided as follows: (i) If at any time during the Adjustment Period the Company shall: (A) fix a record date for the issue of, or issue, Common Stock by combining such shares into a smaller number of shares, then, in such event, the number of shares of Aspen Common Stock obtainable pursuant Shares to the conversion of this Note shall be decreased proportionately. Any dividend paid or distributed upon Aspen Common Stock in shares of any other class of capital stock of Aspen or securities convertible into shares of Aspen Common Stock shall be treated as a dividend paid in Aspen Common Stock to the extent that the shares of Aspen Common Stock are issuable upon the conversion of the Note. In the event that Aspen shall pay a dividend consisting of the securities of any other entity or in cash or other property, upon conversion of this Note, the Holder shall receive the securities, cash, or property which the Holder would have been entitled to if the Holder had converted this Note immediately prior to the record date of such dividend. (b) In the event, prior to the payment of this Note, Aspen shall be recapitalized by reclassifying its outstanding Aspen Common Stock (other than into shares of common stock with a different par value, or by changing its outstanding shares of common stock to shares without par value), or in the event Aspen or a successor corporation, partnership, limited liability company or other entity (any of which is defined as a “Corporation”) shall consolidate or merge with or convey all or substantially all of its, or of any successor Corporation’s property and assets to any other Corporation or Corporations (any such other Corporation being included within the meaning of the term “successor Corporation” used in the context of any consolidation or merger of any other Corporation with, or the sale holders of all or substantially all of the property outstanding Common Shares by way of any such other Corporation a share dividend; (B) fix a record date for the distribution to, another Corporation or Corporations), or in the event of any other material change in the capital structure of Aspen or of any successor Corporation by reason of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or otherwise, then, as make a condition of any such reclassification, reorganization, recapitalization, consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate provision shall be made whereby the Holder of this Note shall thereafter have the right to receive, upon the basis and the terms and conditions specified in this Note, in lieu of the securities of Aspen theretofore issuable upon the conversion of this Note, such shares, securities or assets as may be issued or payable with respect to or in exchange for the number of securities of Aspen theretofore obtainable upon conversion of this Note as provided above had such reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken place; and in any such eventdistribution to, the rights holders of the Holder of this Note to any adjustment in the number of shares of Aspen Common Stock obtainable upon conversion of this Note, as provided, shall continue and be preserved in respect of any shares, securities or assets which the Holder becomes entitled to obtain. Notwithstanding anything herein to the contrary, this Section 3(b) shall not apply to a merger with a subsidiary provided Aspen is the continuing Corporation and provided further such merger does not result in any reclassification, capital reorganization or other change of the securities issuable under this Note. The foregoing provisions of this Section 3(b) shall apply to successive reclassification, capital reorganizations and changes of securities and to successive consolidation, mergers, sales or conveyances. (c) In the event Aspen, at any time while this Note shall remain outstanding, shall sell all or substantially all of its assetsthe outstanding Common Shares payable in Common Shares or securities exchangeable for or convertible into Common Shares; (C) subdivide the outstanding Common Shares into a greater number of Common Shares; or (D) consolidate the outstanding Common Shares into a smaller number of Common Shares, or dissolve(any of such events in subsections (A), liquidate(B), or wind up its affairs(C) and (D) above being called a “Common Share Reorganization”), prompt, proportionate, equitable, lawful and adequate provision the Exercise Price shall be made as part adjusted on the earlier of the terms record date on which holders of any Common Shares are determined for the purposes of the Common Share Reorganization and the effective date of the Common Share Reorganization to the amount determined by multiplying the Exercise Price in effect immediately prior to such salerecord date or effective date, dissolutionas the case may be, liquidationby a fraction: (A) the numerator of which shall be the number of Common Shares outstanding on such record date or effective date, or winding up as the case may be, before giving effect to such that Common Share Reorganization; and (B) the Holder denominator of this Note may thereafter receive, upon exercise hereofwhich shall be the number of Common Shares which will be outstanding immediately after giving effect to such Common Share Reorganization (including, in lieu the case of a distribution of securities exchangeable for or convertible into Common Shares, the securities number of Aspen which it Common Shares that would have been entitled outstanding had such securities been exchanged for or converted into Common Shares on such record date or effective date, as the case may be). To the extent that any adjustment in the Exercise Price occurs pursuant to receivethis Section 8(a)(i) as a result of the fixing by the Company of a record date for the distribution of securities exchangeable for or convertible into Common Shares, the same kind and amount Exercise Price shall be readjusted immediately after the expiry of any sharesrelevant exchange or conversion right to the Exercise Price which would then be in effect based upon the number of Common Shares actually issued and remaining issuable after such expiry and shall be further readjusted in such manner upon the expiry of any further such right. (ii) If at any time during the Adjustment Period the Company shall fix a record date for the issue or distribution to the holders of all or substantially all of the outstanding Common Shares of rights, options or warrants pursuant to which such holders are entitled, during a period expiring not more than 45 days after the record date for such issue (such period being the “Rights Period”), to subscribe for or purchase Common Shares or securities exchangeable for or assets as may be issuable, distributable convertible into Common Shares at a price per share to the holder (or payable upon any such sale, dissolution, liquidation or winding up with respect to each share of Aspen Common Stock; provided, however, that in the event case of securities exchangeable for or convertible into Common Shares, at an exchange or conversion price per share) at the date of issue of such securities of less than the Current Market Price of the Common Shares on such record date (any of such sale, dissolution, liquidation or winding upevents being called a “Rights Offering”), the right to convert this Note Exercise Price shall terminate on a date fixed by Aspen, such date so fixed to be not earlier than 6:00 p.m., New York time, on the 30th day adjusted effective immediately after the record date on which notice of for such termination of the right to convert this Note has been given by mail Rights Offering to the Holder of this Note at amount determined by multiplying the Exercise Price in effect on such Holder’s address as it appears on the books of Aspen.record date by a fraction:

Appears in 1 contract

Samples: Subscription Agreement