Common Stock Distribution. (a) If the Company shall, before the Loan Liquidation Date, issue or otherwise sell or distribute any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, being herein called a “Common Stock Distribution”), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price in effect on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a price determined by multiplying such Exercise Price by a fraction, (A) the numerator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant. (b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration. (c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be. (d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 4 contracts
Samples: Warrant Agreement (Freedom Financial Group Inc), Warrant Agreement (Freedom Financial Group Inc), Warrant Agreement (Freedom Financial Group Inc)
Common Stock Distribution. (a) If In the event the Company shall, before at any time or from time to time after the Loan Liquidation Datedate hereof, issue issue, sell or otherwise sell or distribute (including by way of deemed distributions pursuant to paragraphs (c) and (d) below) any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise other than pursuant to (A) a Common Stock Reorganization Change of Shares, (B) the exercise or Stock Dividend conversion, as the case may be, of any Option, Convertible Security (each as defined in paragraph (c) below) or Warrant) or (C) Section 6(b) of the Company's Senior Notes due 2002 (any such event, including any deemed distributions described in paragraphs (c) and (d), being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price current market price per share of Common Stock (as defined in effect paragraph (f) below), on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a the price (calculated to the nearest 1,000th of one cent) determined by multiplying such the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, (A) the numerator of which shall be the sum of (1i) the number of shares of Common Stock outstanding (or deemed to be outstandingexclusive of any treasury shares) immediately prior to such Common Stock Distribution multiplied by the current market price per share of Common Stock on the date of such Common Stock Distribution, plus (2ii) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (A) the total number of shares of Common Stock issued and outstanding immediately after such Common Stock Distribution multiplied by (B) the current market price per share of Common Stock on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (b), including by operation of paragraph (c) or (d) below, then, effective at the time such adjustment is made, the number of shares of Common Stock which purchasable upon the aggregate consideration received exercise of this Warrant shall be increased to a number determined by multiplying the Company in number of shares so purchasable immediately prior to such Common Stock Distribution would purchase at by a fraction, the numerator of which shall be the Exercise Price (as hereinafter defined), in effect immediately prior to such adjustment and (B) the denominator of which shall be (1) the number of shares of Exercise Price in effect immediately after such adjustment. In computing adjustments under this paragraph, fractional interests in Common Stock outstanding (or deemed shall be taken into account to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number nearest 1,000th of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distributiona share. The provisions of this paragraph (ab), including by operation of paragraph (c) or (d) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase purchasable upon the exercise of this Warrant, except by operation of paragraph (j) or (k) below.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 3 contracts
Samples: Unit Purchase Agreement (Hawthorne Financial Corp), Warrant Agreement (Value Partners LTD /Tx/), Warrant Agreement (Hawthorne Financial Corp)
Common Stock Distribution. (a) If the Company shall, before shall after the Loan Liquidation Date, date of issuance of this Warrant issue or otherwise sell or distribute any shares of Common Stock, otherwise than pursuant to a Common Stock Reorganization (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "COMMON STOCK DISTRIBUTION"), if such Common Stock Distribution shall be for a consideration per share less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such Common Stock Distribution, or on the first date of the announcement of such Common Stock Distribution (whichever is less), then, effective upon such Common Stock Distribution, the number of shares of Common Stock purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of shares of Common Stock subject to purchase upon exercise of this Warrant by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution plus the number of shares of Common Stock issued (or deemed to be issued pursuant to paragraphs (b) and (c) below) in such Common Stock Distribution and the denominator of which shall be an amount equal to the sum of (A) the number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to the Common Stock Distribution, plus (B) the number of shares of Common Stock which the aggregate consideration, if any, received by the Company (determined as provided below) for such Common Stock Distribution would buy at the Fair Market Value thereof, as of the date immediately prior to such Common Stock Distribution or as of the date immediately prior to the date of announcement of such Common Stock Distribution (whichever is less). In the event of any such adjustment, the Exercise Price for each Warrant shall be adjusted to a number determined by dividing the Exercise Price immediately prior to such Common Stock Distribution by the fraction used for purposes of the aforementioned adjustment. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall after the date of issuance of this Warrant issue, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” "OPTIONS" and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, being herein called a “Common Stock Distribution”), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price in effect on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a price determined by multiplying such Exercise Price by a fraction, (A) the numerator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.or
Appears in 2 contracts
Samples: Warrant Agreement (Florsheim Group Inc), Warrant Agreement (Florsheim Group Inc)
Common Stock Distribution. (a) If the Company shall, before at any time or from time to time after the Loan Liquidation Datedate hereof, issue issue, sell or otherwise sell or distribute (including by way of deemed distributions pursuant to paragraphs (c) and (d) below) any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise other than pursuant to (A) a Common Stock Reorganization Change of Shares or Stock Dividend (B) the exercise or conversion, as the case may be, of any Option, Convertible Security (each as defined in paragraph (c) below) or Warrant issued after the date of this Warrant) (any such event, including any deemed distributions described in paragraphs (c) and (d), being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than the greater of the Exercise Price or the Market Dilution Price in effect on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant affected series of Warrants shall be reduced to a the price (calculated to the nearest 100th of one cent) determined by multiplying such the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction that is the lesser (arithmetically nearer to zero) of the following two fractions: (i) a fraction, (A) the numerator of which shall be the sum of (1A) the number of shares of Common Stock outstanding (or deemed exclusive of any treasury shares) immediately prior to be outstanding) such Common Stock Distribution multiplied by the Current Market Price in effect immediately prior to such Common Stock Distribution, plus (2B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (C) the total number of shares of Common Stock which the aggregate consideration received by the Company in issued and outstanding immediately after such Common Stock Distribution would purchase at multiplied by (D) the Exercise Current Market Price (as hereinafter defined), in effect immediately prior to such Common Stock Distribution and (Bii) a fraction, the denominator numerator of which shall be the sum of (1A) the number of shares of Common Stock outstanding (or deemed exclusive of any treasury shares) immediately prior to be outstanding) such Common Stock Distribution multiplied by the Exercise Price in effect immediately prior to such Common Stock Distribution, plus (2B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (C) the total number of shares of Common Stock issued and outstanding immediately after such Common Stock Distribution multiplied by (D) the Exercise Price in effect immediately prior to such Common Stock Distribution.
(1) If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the provisions of this paragraph (b), including by operation of paragraph (c) or (d) below, then, effective at the time such adjustment is made, the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distributionpurchasable upon the exercise of each affected series of Warrant shall be increased to a number determined by multiplying the number of shares for each affected series of Warrant so purchasable immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the Exercise Price in effect immediately prior to such adjustment and the denominator of which shall be the Exercise Price in effect immediately after such adjustment. In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest 100th of a share.
(2) The provisions of this paragraph (ab), including by operation of paragraph (c) or (d) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase purchasable upon the exercise of this Warrantthe Warrants, except by operation of paragraph (j) or (k) below.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 2 contracts
Samples: Warrant Agreement (Genesisintermedia Inc), Warrant Agreement (Icahn Carl C Et Al)
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), for a consideration per share less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less then the Exercise Price then in effect but not less than such Fair Market Value per share, to the lower of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below or, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares of Common Stock outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any such event, being herein called a “Common Stock Distribution”)determined by dividing (i) the aggregate amount, if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price in effect on the date of such Common Stock Distributionany, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a price determined by multiplying such Exercise Price by a fraction, (A) the numerator of which shall be (1) the number of shares of Common Stock outstanding (received or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock which the aggregate consideration received receivable by the Company in such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed consideration for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right Options, plus the minimum aggregate amount of subscription or purchaseadditional consideration payable to the Company upon the exercise of all such Options, as plus, in the case may be.
(d) For purposes of determining whether any adjustment is required pursuant Options to this Article IV any security acquire Convertible Securities, the minimum aggregate amount of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.additional consideration, if
Appears in 2 contracts
Samples: Warrant Agreement (Mce Companies Inc), Warrant Agreement (Mce Companies Inc)
Common Stock Distribution. (a) If at any time while the Warrants or any Warrant Shares remain outstanding, the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to this Agreement or a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "COMMON STOCK DISTRIBUTION"), for a consideration per share less than the Exercise Price then in effect or the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less than the Exercise Price then in effect but not less than the Fair Market Value per share, to the lower of the prices, (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below or, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed, in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Non-Voting Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” "OPTIONS" and such convertible or exchangeable stock or securities being herein called “"CONVERTIBLE SECURITIES"), whether or not such Options or the rights to convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such Options or upon conversion or exchange of such Convertible Securities in respect of such Options (determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such Options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, being herein called a “Common Stock Distribution”)the minimum aggregate amount of additional consideration, if such Common Stock Distribution shall be for a consideration per share less than any, payable upon the Exercise Price in effect on the date issuance or sale of such Common Stock DistributionConvertible Securities and upon the conversion or exchange thereof, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a price determined by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, plus the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2) the number sale or distribution), then, for purposes of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, then the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net therefor, after deduction therefrom of any underwriting commissions or concessions paid or allowed by the Company expenses incurred in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 2 contracts
Samples: Warrant Agreement (Aps Healthcare Inc), Warrant Agreement (Aps Healthcare Inc)
Common Stock Distribution. (a) If the Company shallIssuer shall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stockcommon stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise other than pursuant to a Common Stock Reorganization or Stock Dividend (which is governed by subsection (a) hereof) (any such event, including any event described in subsections (c) and (d) below, being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price in effect Fair Market Value per Share of Common Stock on the date of such Common Stock Distributionissuance, sale or distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced reduced, to a the price determined by multiplying such Exercise Price by a fraction, dividing (A) an amount equal to the numerator sum of which shall be (1) the number of shares of common stock outstanding immediately prior to such Common Stock outstanding Distribution (or deemed to be outstandingcalculated on a fully-diluted basis) multiplied by the Exercise Price immediately prior to such Common Stock Distribution, plus (2) the consideration, if any, received by the Issuer upon such Common Stock Distribution by (B) the total number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined), and (B) the denominator of which shall be (1) the number of shares of Common Stock common stock outstanding (or deemed to be outstanding) immediately prior to after such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the . If any Common Stock Distribution. The Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph subsection (ab), including by operation of subsection (c) shall not operate to increase or (d) below, then, effective at the Exercise Price or to reduce time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities Warrant Certificate shall be issued, sold or distributed for cash, increased to a number determined by multiplying the consideration received therefor shall be deemed to be the amount received by the Company therefor net number of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be issued in connection with any merger in which the Company is the surviving corporation, the amount number of consideration therefor shall be deemed to be the Fair Market Value shares of such portion of the assets and business of the nonsurviving corporation as shall be attributable common stock outstanding immediately after giving effect to such Common Stock, Options or Convertible Securities, as Stock Distribution and the case may be. If any Options denominator of which shall be issued in connection with the issue and sale of other securities sum of the Company, together comprising one integral transaction in which no specific consideration is allocated number of shares outstanding immediately before giving effect to such Options Common Stock Distribution (both calculated on a fully-diluted basis) plus the number of shares of common stock which the aggregate consideration received by the parties thereto, Issuer with respect to such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for Distribution would purchase at a price equal to the purpose of entitling them Exercise Price immediately prior to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may beDistribution.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 2 contracts
Samples: Note and Warrant Purchase Agreement (Murdock Communications Corp), Stock Purchase Warrant (Murdock Communications Corp)
Common Stock Distribution. (a) If In case after the Company shall, before effective date hereof the Loan Liquidation Date, Corporation shall issue or otherwise sell or distribute any additional shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, being herein called a “Common Stock Distribution”), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Group A Purchase Price or Group B Purchase Price in effect on immediately prior to the date time of such issue or sale (any such event being herein called a "Common Stock Distribution"), then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant following adjustments shall be reduced made:
(i) If the additional shares of Common Stock are issued for a consideration per share less than the Group A Purchase Price in effect immediately prior to a price determined the time of such issue or sale, the Number of Group A Warrant Shares shall be adjusted by multiplying the Number of Group A Warrant Shares subject to purchase upon exercise of this Warrant immediately before such Exercise Price Common Stock Distribution by a fraction, (A) the numerator of which shall be the sum of (1A) the total number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2B) the number of shares of Common Stock issued in such Common Stock Distribution and the denominator of which shall be an amount equal to the sum of (Z) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution, plus (Y) the number of shares of Common Stock which the aggregate consideration consideration, if any, received by the Company in for such Common Stock Distribution would purchase buy at the Exercise Group A Purchase Price thereof, as of the date immediately prior to such Common Stock Distribution; provided, however, that shares of Common Stock issued or sold (as hereinafter defined)or deemed issued or sold) without consideration shall be deemed to have been issued or sold for $.01 per share. In the event of any such adjustment, and the Group A Purchase Price shall be adjusted to a number determined by dividing the Group A Purchase Price immediately prior to such Common Stock Distribution by the fraction used for purposes of the aforementioned adjustment; and
(Bii) If the denominator additional shares of Common Stock are issued for a consideration per share less than the Group B Purchase Price in effect immediately prior to the time of such issue or sale, the Number of Group B Warrant Shares shall be adjusted by multiplying the Number of Group B Warrant Shares subject to purchase upon exercise of this Warrant immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (1A) the total number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2B) the number of shares of Common Stock issued in such additional stock so Common Stock Distribution, and the denominator of which shall be an amount equal to the sum of (Z) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution, plus (Y) the number of shares of Common Stock which the aggregate consideration, if any, received by the Company for such Common Stock Distribution would buy at the Group B Purchase Price thereof, as of the date immediately prior to such Common Stock Distribution; provided, however, that shares of Common Stock issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the without consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If or sold for $.01 per share. In the Company event of any such adjustment, the Group B Purchase Price shall take be adjusted to a record number determined by dividing the Group B Purchase Price immediately prior to such Common Stock Distribution by the fraction used for purposes of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may beaforementioned adjustment.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common StockStock (other than Excluded Shares), other than pursuant to a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "COMMON STOCK DISTRIBUTION"), for a consideration per share less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below:
(i) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(ii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Non-Voting Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (other than Excluded Shares) (such rights, warrants or options being herein called “Options” "OPTIONS" and such convertible or exchangeable stock or securities being herein called “"CONVERTIBLE SECURITIES"), whether or not such Options or the rights to convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such Options or upon conversion or exchange of such Convertible Securities in respect of such Options (determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such Options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, being herein called a “Common Stock Distribution”)the minimum aggregate amount of additional consideration, if such Common Stock Distribution shall be for a consideration per share less than any, payable upon the Exercise Price in effect on the date issuance or sale of such Common Stock DistributionConvertible Securities and upon the conversion or exchange thereof, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a price determined by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities (other than Excluded Shares), whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, plus the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2) the number sale or distribution), then, for purposes of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewiththerefor. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock consideration for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may beOptions.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Warrant Agreement (Vistacare Inc)
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), for a consideration per share less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less then the Exercise Price then in effect but not less than such Fair Market Value per share, to the lower of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below or, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares of Common Stock outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such eventOptions, being herein called a “plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock Distribution”), if issuable upon the exercise of such Common Stock Distribution Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be for a consideration per share less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (before giving effect to such grant), then, for purposes of paragraph (a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration of such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate amount received or receivable by the Company as consideration for the issuance, sale or distribution of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distributionissuance, sale or distribution (before giving effect to such issuance, sale or distribution), then, effective upon such for purposes of paragraph (a) above, the total maximum number of shares of Common Stock Distributionissuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, the Exercise Price for each Warrant then in effect shall forthwith be reduced readjusted to a price determined by multiplying such the Exercise Price by a fractionwhich would then be in effect, (A) the numerator of which shall be (1) and the number of shares of Common Stock outstanding (or deemed then subject to purchase upon exercise of the Warrant shall be outstanding) immediately prior readjusted to such Common Stock Distribution, plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined), and (B) the denominator of which shall then be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this WarrantWarrant (in each case effective only with respect to any exercise of this Warrant after such readjustment), had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the gross amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewiththerefor. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shallCybex shall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a “Common Stock Distribution”), for a consideration per share less than the Exercise Price then in effect or less than the Market Price (calculated with a Time of Determination of the date of such Common Stock Distribution before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less than the Exercise Price then in effect but not less than such Market Price, to the lower of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below or, if such consideration per share shall be less than such Market Price, to the lowest of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below:
(i) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then-existing Exercise Price, plus (2) the consideration, if any, received by Cybex upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(ii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Market Price (calculated with a Time of Determination of the date of such Common Stock Distribution), plus (B) the consideration, if any, received by Cybex upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Market Price. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Voting Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Voting Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by Cybex with respect to such Common Stock Distribution would purchase at the Market Price (calculated with a Time of Determination of the date of such Common Stock Distribution before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Voting Common Stock subject to purchase upon exercise of this Warrant.
(b) If Cybex shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any such event, being herein called a “Common Stock Distribution”)determined by dividing (i) the aggregate amount, if such Common Stock Distribution shall be any, received or receivable by Cybex as consideration for a consideration per share less than the Exercise Price in effect on the date granting of such Common Stock DistributionOptions, thenplus the minimum aggregate amount of additional consideration payable to Cybex upon the exercise of all such Options, effective upon such Common Stock Distributionplus, in the case of Options to acquire Convertible Securities, the Exercise Price for each Warrant shall be reduced to a price determined minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock outstanding issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Exercise Price then in effect or less than the Market Price (or deemed to be outstanding) immediately prior calculated with a Time of Determination of the date of granting such Options before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock which issuable upon the aggregate exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and Cybex shall be deemed to have received as consideration received by the Company such price per share, determined as provided above, therefor. Except as otherwise provided in such Common Stock Distribution would purchase at paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(as hereinafter defined)c) If Cybex shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (Bdetermined by dividing (i) the denominator aggregate amount received or receivable by Cybex as consideration for the issuance, sale or distribution of which shall be such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to Cybex upon the conversion or exchange thereof, by (1ii) the total maximum number of shares of Common Stock outstanding issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Exercise Price then in effect or less than the Market Price (calculated with a Time of Determination of the date of such issuance, sale or deemed to be outstanding) immediately prior distribution before giving effect to such Common Stock Distributionissuance, plus (2) the number sale or distribution), then, for purposes of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and Cybex shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If Cybex shall pay a dividend or make any other distribution upon any capital stock of Cybex payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewithCybex therefor. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company Cybex shall be deemed to be the Fair Market Value fair market value (as determined in good faith by the Board of Directors of Cybex) of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company Cybex is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value fair market value (as determined in good faith by the Board of Directors of Cybex) of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the CompanyCybex, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shallshall ------------------------- issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to this Agreement or a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), for a consideration per share less than the Exercise Price then in effect or the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less than the Exercise Price then in effect but not less than the Fair Market Value per share, to the lower of the prices, (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below or, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed, in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Class C Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Class C Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one- thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Class C Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any such event, being herein called a “Common Stock Distribution”)determined by dividing (i) the aggregate amount, if such Common Stock Distribution shall be any, received or receivable by the Company as consideration for a consideration per share less than the Exercise Price in effect on the date granting of such Common Stock DistributionOptions, thenplus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, effective upon such Common Stock Distributionplus, in the case of Options to acquire Convertible Securities, the Exercise Price for each Warrant shall be reduced to a price determined minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, plus the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2) the number sale or distribution), then, for purposes of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, then the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net therefor, after deduction therefrom of any underwriting commissions or concessions paid or allowed by the Company expenses incurred in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shall, before the Loan Liquidation Date, shall issue or otherwise sell or distribute any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (any such rightsevent, warrants or options including any event described in paragraphs (b) and (c) below, being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”a "COMMON STOCK DISTRIBUTION"), otherwise other than the issuance of up to 764,219 shares of Common Stock upon the exercise of employee stock options that have been granted as of the date hereof under the Company's 1997 Executive Incentive Compensation Plan or other than pursuant to a Common Stock Reorganization or Stock Dividend (any such eventReorganization, being herein called a “Common Stock Distribution”), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price then in effect or less than the Market Price (except, if the Company has been Delisted, the term "Market Price" shall be replaced by " greater of the Earnings Value and the Fair Market Value") of the Company per share of outstanding Common Stock on the date of such Common Stock Distributionissue, sale or distribution (before giving effect to such issue, sale or distribution), then, effective upon such Common Stock Distributionissue, sale or distribution, the Exercise Price for each Warrant shall be reduced to a price the lowest of the prices (calculated to the nearest cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) the consideration per share received by multiplying the Company upon the issue, sale or distribution of Common Stock in such Exercise Price Common Stock Distribution;
(ii) by a fraction, dividing (A) an amount equal to the numerator sum of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock DistributionDistribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock which outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the aggregate consideration received by the Company Exercise Price in effect immediately prior to such Common Stock Distribution would purchase at by a fraction, the Exercise Price (as hereinafter defined), and (B) the denominator numerator of which shall be the sum of (1A) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution multiplied by the Market Price (except, if the Company has been Delisted, the term "Market Price" shall be replaced by " greater of the Earnings Value and the Fair Market Value") per share on the date of such Common Stock Distribution, plus (2B) the number of shares of consideration received by the Company upon such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions , and the denominator of this paragraph which shall be the product of (a1) shall not operate to increase the Exercise Price or to reduce the total number of shares of Common Stock subject to purchase upon exercise of this Warrant.
outstanding immediately after such Common Stock Distribution, multiplied by (b2) If any shares of Common Stockthe Market Price (except, Options or Convertible Securities if the Company has been Delisted, the term "Market Price" shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received replaced by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount " greater of the consideration other than cash received by the Company shall be deemed to be Earnings Value and the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(cValue") If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be per share on the date of the issue, sale, distribution or grant such Common Stock Distribution. No adjustment of the shares of Common Stock deemed to have been issued or sold upon the declaration Exercise Price shall be made in an amount less than 1% of such dividend or the making of Exercise Price, but any such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any lesser adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.carried forward and shall be made at
Appears in 1 contract
Samples: Warrant Agreement (Lets Talk Cellular & Wireless Inc)
Common Stock Distribution. (a) If the Company shallHoldings shall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), for a consideration per share less than the Exercise Price then in effect or less than the Fair Market Value of Holdings per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less then the Exercise Price then in effect but not less than such Fair Market Value per share, to the lower of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below or, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if Holdings shall receive any consideration for the Common Stock issued, sold or distributed in such Common Stock Distribution, the consideration per share of Common Stock received by Holdings upon such issue, sale or distribution,
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by Holdings upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by Holdings upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Non-Voting Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by Holdings with respect to such Common Stock Distribution would purchase at the Fair Market Value of Holdings per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant.
(b) If Holdings shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any such event, being herein called a “Common Stock Distribution”)determined by dividing (i) the aggregate amount, if such Common Stock Distribution shall be any, received or receivable by Holdings as consideration for a consideration per share less than the Exercise Price in effect on the date granting of such Common Stock DistributionOptions, thenplus the minimum aggregate amount of additional consideration payable to Holdings upon the exercise of all such Options, effective upon such Common Stock Distributionplus, in the case of Options to acquire Convertible Securities, the Exercise Price for each Warrant shall be reduced to a price determined minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Exercise Price then in effect or less than the Fair Market Value of Holdings per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock which issuable upon the aggregate exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and Holdings shall be deemed to have received as consideration received by the Company of such price per share, determined as provided above, therefor. Except as otherwise provided in such Common Stock Distribution would purchase at paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(as hereinafter defined)c) If Holdings shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (Bdetermined by dividing (i) the denominator aggregate amount received or receivable by Holdings as consideration for the issuance, sale or distribution of which shall be such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to Holdings upon the conversion or exchange thereof, by (1ii) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Exercise Price then in effect or less than the Fair Market Value of Holdings per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2) the number sale or distribution), then, for purposes of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and Holdings shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article 4), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If Holdings shall pay a dividend or make any other distribution upon any capital stock of Holdings payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net Holdings therefor, after deduction therefrom of any underwriting commissions or concessions paid or allowed by the Company expenses incurred in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company Holdings shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company Holdings is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the CompanyHoldings, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (ai) If Subject to the last sentence of this paragraph, if the Company shall, before shall after the Loan Liquidation Date, date hereof issue or otherwise sell or distribute any shares of Common Stock, otherwise than pursuant to a Common Stock Reorganization (any such event, including any event described in paragraphs (ii) and (iii) below, being herein called a "Common Stock Distribution"), if such Common Stock Distribution shall be for a consideration per share less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such Common Stock Distribution, or on the first date of the announcement of such Common Stock Distribution (whichever is less), then, effective upon such Common Stock Distribution, the number of shares of Common Stock purchasable upon exercise of each of the Options respectively shall be adjusted by multiplying the number of shares of Common Stock subject to purchase upon exercise of each of the Options by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution plus the number of shares of Common Stock issued (or deemed to be issued pursuant to paragraphs (ii) and (iii) below) in such Common Stock Distribution and the denominator of which shall be an amount equal to the sum of (A) the number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution, plus (B) the number of shares of Common Stock which the aggregate consideration, if any, received by the Company (determined as provided below) for such Common Stock Distribution would buy at the Fair Market Value thereof, as of the date immediately prior to such Common Stock Distribution or as of the date immediately prior to the date of announcement of such Common Stock Distribution (whichever is less). In the event of any such adjustment, the exercise price for each of the Options shall be adjusted to a number determined by dividing the exercise price immediately prior to such Common Stock Distribution by the fraction used for purposes of the aforementioned adjustment. The provisions of this paragraph (i), including by operation of paragraph (ii) or (iii) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of each of the Options.
(ii) If the Company shall after the date hereof issue, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, being herein called a “Common Stock Distribution”), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price in effect on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a price determined by multiplying such Exercise Price by a fraction, (A) the numerator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.,
Appears in 1 contract
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to a Common Stock Reorganization (which is governed by Section 4.02 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), for a consideration per share less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less then the Exercise Price then in effect but not less than such Fair Market Value per share, to the lower of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below or, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Non-Voting Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any such event, being herein called a “Common Stock Distribution”)determined by dividing (i) the aggregate amount, if such Common Stock Distribution shall be any, received or receivable by the Company as consideration for a consideration per share less than the Exercise Price in effect on the date granting of such Common Stock DistributionOptions, thenplus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, effective upon such Common Stock Distributionplus, in the case of Options to acquire Convertible Securities, the Exercise Price for each Warrant shall be reduced to a price determined minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration of such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, plus the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2) the number sale or distribution), then, for purposes of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article 4), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net therefor, after deduction therefrom of any underwriting commissions or concessions paid or allowed by the Company expenses incurred in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shall, before shall after the Loan Liquidation Date, date of issuance of this Warrant issue or otherwise sell or distribute any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, including any event described in paragraphs (b) and (c) below, being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price in effect Fair Market Value per share of outstanding Common Stock of the Company on the date of such Common Stock Distribution, or on the first date of the announcement of such Common Stock Distribution (whichever is less), then, effective upon such Common Stock Distribution, the Exercise Price for each number of shares of Common Stock purchasable upon exercise of this Warrant shall be reduced to a price determined adjusted by multiplying such Exercise Price the number of shares of Common Stock subject to purchase upon exercise of this Warrant by a fraction, (A) the numerator of which shall be the total number of shares of Common Stock outstanding (1and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution plus the number of shares of Common Stock issued (or deemed to be issued pursuant to paragraphs (b) and (c) below) in such Common Stock Distribution and the denominator of which shall be an amount equal to the sum of (A) the number of shares of Common Stock outstanding (and issuable upon exercise or deemed to be outstandingconversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution, plus (2B) the number of shares of Common Stock which the aggregate consideration consideration, if any, received by the Company in (determined as provided below) for such Common Stock ______________________________________ Footnote continued from previous page. 164 Distribution would purchase buy at the Exercise Price (Fair Market Value thereof, as hereinafter defined), and (B) of the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) date immediately prior to such Common Stock Distribution, plus (2) Distribution or as of the number date immediately prior to the date of shares announcement of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock DistributionDistribution (whichever is less). In the event of any such adjustment, the Exercise Price for each Warrant shall be adjusted to a number determined by dividing the Exercise Price immediately prior to such Common Stock Distribution by the fraction used for purposes of the aforementioned adjustment. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If In the Company event the Issuer shall, before at any time or from time to time after the Loan Liquidation Datedate hereof, issue issue, sell or otherwise sell or distribute (including by way of deemed distributions pursuant to paragraphs (c) and (d) below) any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise other than pursuant to (i) a Common Stock Reorganization Change of Shares, or Stock Dividend (ii) the exercise or conversion, as the case may be, of any Option, Convertible Security (each as defined in paragraph (c) below) or warrant) (any such event, including any deemed distributions described in paragraphs (c) and (d) but excluding any transaction described in paragraph (m), being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price in effect current market price per share of Common Stock, on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Conversion Price for each Warrant shall be reduced to a the price (calculated to the nearest 1,000th of one cent) determined by multiplying the Conversion Price in effect immediately prior to such Exercise Price Common Stock Distribution by a fraction, (A) the numerator of which shall be the sum of (1) the product of the number of shares of Common Stock outstanding (or deemed to be outstandingexclusive of any treasury shares) immediately prior to such Common Stock Distribution multiplied by the current market price per share of Common Stock on the date of such Common Stock Distribution, plus (2) the consideration, if any, received by the Issuer upon such Common Stock Distribution, and the denominator of which shall be the product of (x) the total number of shares of Common Stock which the aggregate consideration received by the Company in issued and outstanding immediately after such Common Stock Distribution would purchase multiplied by (y) the current market price per share of Common Stock on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Conversion Price pursuant to the foregoing provisions of this paragraph (b), including by operation of paragraph (c) or (d) below, then, effective at the Exercise Price (as hereinafter defined)time such adjustment is made, and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed receivable upon conversion shall be increased to be outstanding) a number determined by multiplying the number of shares so receivable immediately prior to such Common Stock DistributionDistribution by a fraction, plus (2) the number numerator of shares which shall be the Conversion Price in effect immediately prior to such adjustment and the denominator of which shall be the Conversion Price in effect immediately after such additional stock so issued or sold (or deemed issued or sold) adjustment. In computing adjustments under this paragraph, fractional interests in the Common Stock Distributionshall be taken into account to the nearest 1,000th of a share. The provisions of this paragraph (ab), including by operation of paragraph (c) or (d) below, shall not operate to increase the Exercise Conversion Price or to reduce the number of shares of Common Stock subject to purchase receivable upon exercise conversion, except by operation of this Warrant.
paragraph (bj) If any shares or (k) below, or in the event of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders reverse split of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shall, before shall after the Loan Liquidation Date, date of issuance of this Warrant issue or otherwise sell or distribute any shares of Common Stock, otherwise than pursuant to a Common Stock Reorganization (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), if such Common Stock Distribution shall be for a consideration per share less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such Common Stock Distribution, or on the first date of the announcement of such Common Stock Distribution (whichever is less), then, effective upon such Common Stock Distribution, the number of shares of Common Stock purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of shares of Common Stock subject to purchase upon exercise of this Warrant by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution plus the number of shares of Common Stock issued (or deemed to be issued pursuant to paragraphs (b) and (c) below) in such Common Stock Distribution and the denominator of which shall be an amount equal to the sum of (A) the number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to the Common Stock Distribution, plus (B) the number of shares of Common Stock which the aggregate consideration, if any, received by the Company (determined as provided below) for such Common Stock Distribution would buy at the Fair Market Value thereof, as of the date immediately prior to such Common Stock Distribution or as of the date immediately prior to the date of announcement of such Common Stock Distribution (whichever is less). In the event of any such adjustment, the Exercise Price for each Warrant shall be adjusted to a number determined by dividing the Exercise Price immediately prior to such Common Stock Distribution by the fraction used for purposes of the aforementioned adjustment. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall after the date of issuance of this Warrant issue, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities (any determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such eventOptions, being herein called a “plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock Distribution”), if issuable upon the exercise of such Common Stock Distribution Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be for a consideration per share less than the Exercise Price in effect Fair Market Value per share of outstanding Common Stock of the Company on the date of granting such Options or on the date of announcement thereof (whichever is less), then for purposes of paragraph (a) above, the total maximum number of shares of Common Stock Distribution, then, effective issuable upon the exercise of such Common Stock Distribution, Options or upon conversion or exchange of the Exercise Price for each Warrant total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be reduced deemed to a price determined by multiplying have been issued as of the date of granting of such Exercise Price by a fraction, (A) the numerator of which Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share therefor, determined as provided above. Except as otherwise provided in paragraph (1d) below, no additional adjustment of the number of shares of Common Stock purchasable upon the exercise of this Warrant or of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall after the date of issuance of this Warrant issue, sell or otherwise distribute or grant (whether directly or by assumption in a merger or otherwise) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate amount received or receivable by the Company as consideration for the issue, sale or distribution of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such issue, sale or distribution or on the date of announcement thereof (whichever is less). then, for purposes of paragraph (a) above, the total maximum number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issue, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstandingoutstanding and the Company shall be deemed to have received as consideration such price per share therefor, determined as provided above. Except as otherwise provided in paragraph (d) immediately prior to such Common Stock Distributionbelow, plus (2) no additional adjustment of the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at purchasable upon exercise of this Warrant or of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(as hereinafter definedd) If the purchase price provided for in any Option referred to in paragraph (b) above, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above, or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against, and having the effect of protecting against, dilution upon an event which results in a related adjustment pursuant to this Article IV), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions purchasable upon exercise of this paragraph (a) shall not operate to increase Warrant and the Exercise Price or then in effect shall forthwith be readjusted (effective only with respect to reduce any exercise of this Warrant after such readjustment) to the number of shares of Common Stock subject to purchase purchasable upon exercise of this WarrantWarrant and the Exercise Price which would then be in effect had the adjustment made upon the issue, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be; provided, however, that such readjustment shall give effect to such change only with respect to such Options and Convertible Securities as then remain outstanding. If, at any time after any adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price shall have been made pursuant to this Article IV on the basis of the issuance of any Option or Convertible Securities or after any new adjustments of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price shall have been made pursuant to this paragraph, the right of conversion, exercise or exchange in such Option or Convertible Securities shall expire or terminate, and the right of conversion, exercise or exchange in respect of a portion of such Option or Convertible Securities shall not have been exercised, such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such Option or Convertible Securities on the basis of treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise of such right of conversion, exercise or exchange as having been issued on the date or dates of such conversion, exercise or exchange and for the consideration actually received and receivable therefor, and treating any such Option or Convertible Securities which then remain outstanding as having been granted or issued immediately after the time of any such issuance for the consideration per share for which shares of Common Stock are issuable under such Option or Convertible Securities; and, if and to the extent called for by the foregoing provisions of this Section on the basis aforesaid, a new adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant and the Exercise Price shall be made, which new adjustment shall supersede (effective only with respect to any exercise of this Warrant after such readjustment) the previous adjustment so rescinded and annulled.
(be) If the Company shall after the date of issuance of this Warrant pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities, as the case may be, shall be deemed to have been issued without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the gross amount received by the Company therefor net of (with no deduction for any underwriting commissions or concessions paid or allowed by the Company in connection therewith). If It any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value fair market value of such considerationconsideration as determined in good faith by the Board of Directors of the Company, after (with no deduction of any expenses incurred and for any underwriting commissions or concessions paid or allowed by the Company in connection therewith). If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without considerationfor consideration to be determined pursuant to the Appraisal Procedure.
(cg) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them then to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(dh) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Warrant Agreement (Dti Holdings Inc)
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to this Warrant or a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), for a consideration per share less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced (but in no event increased), if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed, in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any such event, being herein called a “Common Stock Distribution”)determined by dividing (i) the aggregate amount, if such Common Stock Distribution shall be any, received or receivable by the Company as consideration for a consideration per share less than the Exercise Price in effect on the date granting of such Common Stock DistributionOptions, thenplus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, effective upon such Common Stock Distributionplus, in the case of Options to acquire Convertible Securities, the Exercise Price for each Warrant shall be reduced to a price determined minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, plus the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2) the number sale or distribution), then, for purposes of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, then the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net therefor, after deduction therefrom of any underwriting commissions or concessions paid or allowed by the Company expenses incurred in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Warrant Agreement (Medaphis Corp)
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common StockStock (other than Excluded Shares), other than pursuant to a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "COMMON STOCK DISTRIBUTION"), for a consideration per share less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Non-Voting Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Non-Voting Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (other than Excluded Shares) (such rights, warrants or options being herein called “Options” "OPTIONS" and such convertible or exchangeable stock or securities being herein called “"CONVERTIBLE SECURITIES"), whether or not such Options or the rights to convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such Options or upon conversion or exchange of such Convertible Securities in respect of such Options (determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such Options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, being herein called a “Common Stock Distribution”)the minimum aggregate amount of additional consideration, if such Common Stock Distribution shall be for a consideration per share less than any, payable upon the Exercise Price in effect on the date issuance or sale of such Common Stock DistributionConvertible Securities and upon the conversion or exchange thereof, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a price determined by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration of such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities (other than Excluded Shares), whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, plus the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2) the number sale or distribution), then, for purposes of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option (other than Excluded Shares) referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities (other than Excluded Shares) referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities (other than Excluded Shares) referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net therefor, after deduction therefrom of any underwriting commissions or concessions paid or allowed by the Company expenses incurred in connection therewith. If any shares of Common Stock, Options or Convertible Securities (other than Excluded Shares) shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities (other than Excluded Shares) shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options (other than Excluded Shares) shall be issued in connection with the issue issuance and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated by the Company to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to this Warrant or a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), for a consideration per share less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced (but in no event increased), if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed, in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any such event, being herein called a “Common Stock Distribution”)determined by dividing (i) the aggregate amount, if such Common Stock Distribution shall be any, received or receivable by the Company as consideration for a consideration per share less than the Exercise Price in effect on the date granting of such Common Stock DistributionOptions, thenplus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, effective upon such Common Stock Distributionplus, in the case of Options to acquire Convertible Securities, the Exercise Price for each Warrant shall be reduced to a price determined minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, plus the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2) the number sale or distribution), then, for purposes of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, then the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net therefor, after deduction therefrom of any underwriting commissions or concessions paid or allowed by the Company expenses incurred in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to this Agreement or a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a “Common Stock Distribution”), for a consideration per share less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed, in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”’’), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any such event, being herein called a “Common Stock Distribution”)determined by dividing (i) the aggregate amount, if such Common Stock Distribution shall be any, received or receivable by the Company as consideration for a consideration per share less than the Exercise Price in effect on the date granting of such Common Stock DistributionOptions, thenplus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, effective upon such Common Stock Distributionplus, in the case of Options to acquire Convertible Securities, the Exercise Price for each Warrant shall be reduced to a price determined minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, plus the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2sale or distribution) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions Convertible Securities, then, for purposes of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, then the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any shares other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may bewithout consideration.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Warrant Agreement (Advanced Life Sciences Holdings, Inc.)
Common Stock Distribution. (a) If the Company shall, before shall after the Loan Liquidation Date, date of issuance of this Warrant issue or otherwise sell or distribute any shares of Common Stock, otherwise than pursuant to a Common Stock Reorganization (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), if such Common Stock Distribution shall be for a consideration per share less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such Common Stock Distribution, or on the first date of the announcement of such Common Stock Distribution (whichever is less), then, effective upon such Common Stock Distribution, the number of shares of Common Stock purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of shares of Common Stock subject to purchase upon exercise of this Warrant by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution plus the number of shares of Common Stock issued (or deemed to be issued pursuant to paragraphs (b) and (c) below) in such Common Stock Distribution and the denominator of which shall be an amount equal to the sum of (A) the number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to the Common Stock Distribution, plus (B) the number of shares of Common Stock which the aggregate consideration, if any, received by the Company (determined as provided below) for such Common Stock Distribution would buy at the Fair Market Value thereof, as of the date immediately prior to such Common Stock Distribution or as of the date immediately prior to the date of announcement of such Common Stock Distribution (whichever is less). In the event of any such adjustment, the Exercise Price for each Warrant shall be adjusted to a number determined by dividing the Exercise Price immediately prior to such Common Stock Distribution by the fraction used for purposes of the aforementioned adjustment. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall after the date of issuance of this Warrant issue, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities (any determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such eventOptions, being herein called a “plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock Distribution”), if issuable upon the exercise of such Common Stock Distribution Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be for a consideration per share less than the Exercise Price in effect Fair Market Value per share of outstanding Common Stock of the Company on the date of granting such Options or on the date of announcement thereof (whichever is less), then for purposes of paragraph (a) above, the total maximum number of shares of Common Stock Distribution, then, effective issuable upon the exercise of such Common Stock Distribution, Options or upon conversion or exchange of the Exercise Price for each Warrant total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be reduced deemed to a price determined by multiplying have been issued as of the date of granting of such Exercise Price by a fraction, (A) the numerator of which Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (1d) below, no additional adjustment of the number of shares of Common Stock purchasable upon the exercise of this Warrant or of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall after the date of issuance of this Warrant issue, sell or otherwise distribute or grant (whether directly or by assumption in a merger or otherwise) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate amount received or receivable by the Company as consideration for the issue, sale or distribution of such Convertible Securities, plus, the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such issue, sale or distribution or on the date of announcement thereof (whichever is less), then, for purposes of paragraph (a) above, the total maximum number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issue, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstandingoutstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) immediately prior to such Common Stock Distributionbelow, plus (2) no additional adjustment of the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at purchasable upon exercise of this Warrant or of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(as hereinafter definedd) If the purchase price provided for in any Option referred to in paragraph (b) above, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above, or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against, and having the effect of protecting against, dilution upon an event which results in a related adjustment pursuant to this Article IV), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions purchasable upon exercise of this paragraph (a) shall not operate to increase Warrant and the Exercise Price or then in effect shall forthwith be readjusted (effective only with respect to reduce any exercise of this Warrant after such readjustment) to the number of shares of Common Stock subject to purchase purchasable upon exercise of this WarrantWarrant and the Exercise Price which would then be in effect had the adjustment made upon the issue, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be; provided, however that such readjustment shall give effect to such change only with respect to such Options and Convertible Securities as then remain outstanding. If, at any time after any adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price shall have been made pursuant to this Article IV on the basis of the issuance of any Option or Convertible Securities or after any new adjustments of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price shall have been made pursuant to this paragraph, the right of conversion, exercise or exchange in such Option or Convertible Securities shall expire or terminate, and the right of conversion, exercise or exchange in respect of a portion of such Option or Convertible Securities shall not have been exercised, such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such Option or Convertible Securities on the basis of treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise of such right of conversion, exercise or exchange as having been issued on the date or dates of such conversion, exercise or exchange and for the consideration actually received and receivable therefor, and treating any such Option or Convertible Securities which then remain outstanding as having been granted or issued immediately after the time of any such issuance for the consideration per share for which shares of Common Stock are issuable under such Option or Convertible Securities; and, if, pursuant to the provisions of this Section, a new adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant and the Exercise Price shall be made, the new adjustment shall supersede (effective only with respect to any exercise of this Warrant after such readjustment) any previous adjustment.
(be) If the Company shall after the date of issuance of this Warrant pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities, as the case may be, shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for without consideration.
(cg) If the Company shall take a record of the holders Holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(dh) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If In the event the Company shall, before at any time or from time to time after the Loan Liquidation Datedate hereof, issue issue, sell, or otherwise sell or distribute any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise other than pursuant to a Common Stock Reorganization Change of Shares or Stock Dividend the exercise of any Option, Convertible Security (each as defined in paragraph (c) and (d) below), or Warrant (any such eventevent including any event described in paragraphs (c) and (d) below), being herein called a “"Common Stock Distribution”), if such Common Stock Distribution shall be ") for a consideration per share less than the Exercise Price current market price per share of Common Stock (as defined in effect paragraph (f) below) on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a the price (calculated to the nearest 1,000th of one cent) determined by multiplying such the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, (A) the numerator of which shall be the sum of (1i) the number of shares of Common Stock outstanding (or deemed to be outstandingexclusive of any treasury shares) immediately prior to such Common Stock Distribution multiplied by the current market price per share of Common Stock on the date of such Common Stock Distribution, plus (2ii) the number of shares of Common Stock which the aggregate consideration consideration, if any, received by the Company in upon such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined)Distribution, and (B) the denominator of which shall be the product of (1A) the total number of shares of Common Stock outstanding (exclusive of any treasury shares) immediately after such Common Stock Distribution multiplied by (B) the current market price per share of Common Stock on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment of the Exercise Price pursuant to the foregoing provisions of this paragraph (b), including by operation of paragraph (c) or deemed (d) below, then, effective at the time such adjustment is made, the number of shares of Common Stock purchasable upon the exercise of this Warrant shall be increased to be outstanding) a number determined by multiplying the number of such shares so purchasable immediately prior to such Common Stock DistributionDistribution by a fraction, plus (2) the number numerator of shares which shall be the Exercise Price in effect immediately prior to such adjustment and the denominator of which shall be the Exercise Price in effect immediately after such additional stock so issued or sold (or deemed issued or sold) adjustment. In computing adjustments under this paragraph, fractional interests in the Common Stock Distributionshall be taken into account to the nearest 1,000th of a share. The provisions of this paragraph (ab), including by operation of paragraph (c) or (d) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase purchasable upon the exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (ai) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to a Common Stock Reorganization (which is governed by Section 5(a)) (any such event, including any event described in paragraphs (ii) and (iii) below, being herein called a "Common Stock Distribution"), for a consideration per share less than (x) the Market Price immediately prior to such Common Stock Distribution or (y) the Exercise Price then in effect, then, effective upon such Common Stock Distribution, the Exercise Price shall be If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this Section 5(b), including by operation of paragraph (ii) or (iii) below, then, effective at the time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the Exercise Price in effect immediately prior to such event and the denominator of which shall be the Exercise Price as adjusted in accordance with this Section 5(b). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this Section 5(b), including by operation of paragraph (ii) or (iii) below, shall not operate to increase the Exercise Price or reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(ii) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), whether or not such Options or the rights to convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable or exercisable prior to the Expiration Date, and the price per share for which Common Stock is issuable upon the exercise of such Options or upon conversion or exchange of such Convertible Securities in respect of such Options (determined by dividing (x) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by (y) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such options) shall be less than (A) the Market Price immediately prior to the granting of such Options or (B) the Exercise Price, then, for purposes of Section 5(b)(i), the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be
(iii) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable or exercisable prior to the Expiration Date, and the price per share for which Common Stock is issuable upon the conversion or exchange of such Convertible Securities (determined by dividing (x) the aggregate amount received or receivable by the Company as consideration for the issuance, sale or distribution of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (y) the maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than (A) the Market Price immediately prior to such issuance, sale or distribution or (B) the Exercise Price, then, for purposes of Section 5(b)(i), the total maximum number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise in paragraph (iv) below, no additional adjustment of the Exercise, Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(iv) If (x) the purchase price provided for in any Option referred to in Section 5(b)(ii) or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in Sections 5(b)(ii) or 5(b)(iii) or the rate at which any Convertible Securities referred to in Sections 5(b)(ii) or 5(b)(iii) are convertible into or exchangeable for Common Stock shall change at any time (other than under or by any reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Section 5), or (y) any of such Options or Convertible Securities shall have terminated, lapsed or expired, the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this Warrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (x) of this paragraph (iv)) or had such adjustment not been made (in the case of any event referred to in clause (y) of this paragraph (iv)).
(v) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, other than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, being herein called a “Common Stock Distribution”which is governed by Section 5(a), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price in effect on the date of such Common Stock Distribution), then, effective upon for purposes of this Section 5(b), such Common Stock DistributionStock, the Exercise Price for each Warrant Options or Convertible Securities shall be reduced to a price determined by multiplying such Exercise Price by a fraction, (A) the numerator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so have been issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrantwithout consideration.
(bvi) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor thereof shall be deemed to be the amount received by the Company therefor net without any deduction therefrom of any underwriting commissions or concessions paid or allowed by the Company expenses incurred in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value fair market value of such considerationconsideration at the time of its receipt by the Company as determined in good faith by the Board of Directors of the Company, after without any deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value fair market value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be, at the time of the merger as determined in good faith by the Board of Directors of the Company. If any Options shall be issued in connection with the issue issuance and sale sale, of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Objective Communications Inc)
Common Stock Distribution. (a) If the Company shall, before the Loan Liquidation Date, issue or otherwise sell or distribute any shares of Common Stockshall issue, sell, distribute or otherwise grant in any manner shares of Common Stock, other than (whether directly or by assumption in a merger or otherwisei) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization Reorganization, (ii) not more than an aggregate of 20,000 shares of Common Stock issued pursuant to a transaction approved by the Board of Directors, (iii) an aggregate of not more than 3,500,000 shares issued pursuant to the exercise of options or warrants for the purchase of Common Stock Dividend outstanding on the date hereof or as reserved and ungranted as of the date hereof pursuant to the 1996 Stock Option Plan or any similar stock option or incentive plan of the Company approved by a majority of the Company's Board of Directors and, as required, shareholders (the "Stock Plan"), (iv) shares of Common Stock issued upon the conversion or exercise of the Series A Preferred Stock or this Warrant; or (v) shares of Common Stock and/or Option Securities (as defined below) issued in connection with the acquisition of Guideline Research Corporation ("Guideline"), including those shares of Common Stock issued to shareholders of Guideline as part of the One Year Deferred Compensation Amount (as defined in that certain Stock Purchase Agreement by and among Jay L. Friedland, Robert La Terra, Guideline Research Corporation anx xxx Cxxxxxx xx xxx xx its wholly-owned subsidiaries, dated as of April 1, 2003 (the "Acquisition Agreement"), but in all cases excluding any shares of Common Stock issued by the Company in connection with any indemnity obligations of the Company pursuant to the Acquisition Agreement (any such eventissuance, sale, distribution or grant in (i) through (v) being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than $1.25 per share (the "Investment Price") then the Exercise Price in effect on shall be adjusted as follows: the date of Exercise Price immediately prior to such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant Distribution shall be reduced to a price determined by multiplying such Exercise Price multiplied by a fraction, (A) the numerator of which shall be the sum of (1) the number of fully-diluted shares of Common Stock outstanding (assuming the conversion or deemed to be outstandingexercise of all outstanding securities convertible into or exercisable for shares of Common Stock) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock which that the aggregate consideration received by the Company in for such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined)Investment Price, and (B) the denominator of which shall be the sum of (1) the number of fully-diluted shares of Common Stock outstanding (assuming the conversion or deemed to be outstandingexercise of all outstanding securities convertible into or exercisable for shares of Common Stock) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock issued in such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shall, before at any time or from time to time after the Loan Liquidation Datedate hereof, issue issue, sell or otherwise sell or distribute (including by way of deemed distributions pursuant to paragraphs (c) and (d) below) any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise other than pursuant to (A) a Common Stock Reorganization Change of Shares or Stock Dividend (B) the exercise or conversion, as the case may be, of any Warrant, Convertible Security (each as defined in paragraph (c) below) or Option) (any such event, including any deemed distributions described in paragraphs (c) and (d), being herein herein
called a “Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than the greater of the Exercise Price or the Market Dilution Price in effect on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant affected series of Options shall be reduced to a the price (calculated to the nearest 100th of one cent) determined by multiplying such the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction that is the lesser of the following two fractions: (i) a fraction, (A) the numerator of which shall be the sum of (1A) the number of shares of Common Stock outstanding (or deemed exclusive of any treasury shares) immediately prior to be outstanding) such Common Stock Distribution multiplied by the Current Market Price in effect immediately prior to such Common Stock Distribution, plus (2B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (C) the total number of shares of Common Stock which the aggregate consideration received by the Company in issued and outstanding immediately after such Common Stock Distribution would purchase at multiplied by (D) the Exercise Current Market Price (as hereinafter defined), in effect immediately prior to such Common Stock Distribution and (Bii) a fraction, the denominator numerator of which shall be the sum of (1A) the number of shares of Common Stock outstanding (or deemed exclusive of any treasury shares) immediately prior to be outstanding) such Common Stock Distribution multiplied by the Exercise Price in effect immediately prior to such Common Stock Distribution, plus (2B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (C) the total number of shares of Common Stock issued and outstanding immediately after such Common Stock Distribution multiplied by (D) the Exercise Price in effect immediately prior to such Common Stock Distribution.
(1) If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the provisions of this paragraph (b), including by operation of paragraph (c) or (d) below, then, effective at the time such adjustment is made, the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distributionpurchasable upon the exercise of each affected series of Options shall be increased to a number determined by multiplying the number of shares for each affected series of Options so purchasable immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the Exercise Price in effect immediately prior to such adjustment and the denominator of which shall be the Exercise Price in effect immediately after such adjustment. In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest 100th of a share.
(2) The provisions of this paragraph (ab), including by operation of paragraph (c) or (d) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase purchasable upon the exercise of this Warrantthe Options, except by operation of paragraph (j) or (k) below.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If In the event the Company shall, before at any time or from time to time after the Loan Liquidation Datedate hereof, issue issue, sell or otherwise sell or distribute (including by way of deemed distributions pursuant to paragraphs (c) and (d) below) any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise other than pursuant to a Common Stock Reorganization Change of Shares or Stock Dividend the exercise of any Option, Convertible Security (each as defined in paragraph (c) below) or Warrant) (any such event, including any deemed distributions described in paragraphs (c), (d) and (n) below, being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price current market price per share of Common Stock (as defined in effect paragraph (f) below) on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Purchase Price for each Warrant shall be reduced to a the price (calculated to the nearest 1,OOOth of one cent) determined by multiplying the Purchase Price in effect immediately prior to such Exercise Price Common Stock Distribution by a fraction, (A) the numerator of which shall be the sum of (1i) the number of shares of Common Stock outstanding (or deemed to be outstandingexclusive of any treasury shares) immediately prior to such Common Stock Distribution multiplied by the current market price per share of Common Stock on the date of such Common Stock Distribution, plus (2ii) the number of shares of Common Stock which the aggregate consideration consideration, if any, received by the Company in upon such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined)Distribution, and (B) the denominator of which shall be the product of (1A) the total number of shares of Common Stock outstanding (exclusive of any treasury shares) immediately after such Common Stock Distribution multiplied by (B) the current market price per share of Common Stock on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Purchase Price pursuant to the foregoing provisions of this paragraph (b), including by operation of paragraph (c) or deemed (d) below, then, effective at the time such adjustment is made, the number of shares of Common Stock purchasable upon the exercise of each Warrant shall be increased to be outstanding) a number determined by multiplying the number of such shares so purchasable immediately prior to such Common Stock DistributionDistribution by a fraction, plus (2) the number numerator of shares which shall be the Purchase Price in effect immediately prior to such adjustment and the denominator of which shall be the Purchase Price in effect immediately after such additional stock so issued or sold (or deemed issued or sold) adjustment. In computing adjustments under this paragraph, fractional interests in the Common Stock Distributionshall be taken into account to the nearest 1,OOOth of a share. The provisions of this paragraph (ab), including by operation of paragraph (c) or (d) below, shall not operate to increase the Exercise Purchase Price or to reduce the number of shares of Common Stock subject to purchase purchasable upon the exercise of this any Warrant, except by operation of paragraph (j) or (k) below.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), for a consideration per share less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less then the Exercise Price then in effect but not less than such Fair Market Value per share, to the lower of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below or, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares of Common Stock outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such eventOptions, being herein called a “plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock Distribution”), if issuable upon the exercise of such Common Stock Distribution Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be for a consideration per share less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (before giving effect to such grant), then, for purposes of paragraph (a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration of such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate amount received or receivable by the Company as consideration for the issuance, sale or distribution of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Exercise Price then in effect or less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distributionissuance, sale or distribution (before giving effect to such issuance, sale or distribution), then, effective upon such for purposes of paragraph (a) above, the total maximum number of shares of Common Stock Distributionissuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, the Exercise Price for each Warrant then in effect shall forthwith be reduced readjusted to a price determined by multiplying such the Exercise Price by a fractionwhich would then be in effect, (A) the numerator of which shall be (1) and the number of shares of Common Stock outstanding (or deemed then subject to purchase upon exercise of the Warrant shall be outstanding) immediately prior readjusted to such Common Stock Distribution, plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined), and (B) the denominator of which shall then be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this WarrantWarrant (in each case effective only with respect to any exercise of this Warrant after such readjustment), had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the gross amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewiththerefor. If any shares of Common Stock, Options or Convertible Securities shall be issued, issued sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.connection
Appears in 1 contract
Common Stock Distribution. (a) If the Company shall, before shall after the Loan Liquidation Date, date of issuance of this Warrant issue or otherwise sell or distribute any shares of Common Stock, otherwise than pursuant to a Common Stock Reorganization (any such event, including any event described in paragraphs (b) and (c) below, 10 -10- being herein called a "Common Stock Distribution"), if such Common Stock Distribution shall be for a consideration per share less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such Common Stock Distribution, or on the first date of the announcement of such Common Stock Distribution (whichever is less), then, effective upon such Common Stock Distribution, the number of shares of Common Stock purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of shares of Common Stock subject to purchase upon exercise of this Warrant by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution plus the number of shares of Common Stock issued (or deemed to be issued pursuant to paragraphs (b) and (c) below) in such Common Stock Distribution and the denominator of which shall be an amount equal to the sum of (A) the number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution, plus (B) the number of shares of Common Stock which the aggregate consideration, if any, received by the Company (determined as provided below) for such Common Stock Distribution would buy at the Fair Market Value thereof, as of the date immediately prior to such Common Stock Distribution or as of the date immediately prior to the date of announcement of such Common Stock Distribution (whichever is less). In the event of any such adjustment, the Exercise Price for each Warrant shall be adjusted to a number determined by dividing the Exercise Price immediately prior to such Common Stock Distribution by the fraction used for purposes of the aforementioned adjustment. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall after the date of issuance of this Warrant issue, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or 11 -11- not such Options or the rights to a convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities (any determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such eventOptions, being herein called a “plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock Distribution”), if issuable upon the exercise of such Common Stock Distribution Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be for a consideration per share less than the Exercise Price in effect Fair Market Value per share of outstanding Common Stock of the Company on the date of granting such Options or on the date of announcement thereof (whichever is less), then for purposes of paragraph (a) above, the total maximum number of shares of Common Stock Distribution, then, effective issuable upon the exercise of such Common Stock Distribution, Options or upon conversion or exchange of the Exercise Price for each Warrant total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be reduced deemed to a price determined by multiplying have been issued as of the date of granting of such Exercise Price by a fraction, (A) the numerator of which Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (1d) below, no additional adjustment of the number of shares of Common Stock purchasable upon the exercise of this Warrant or of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) Market Value per share of outstanding Common Stock of the Company on the date of such issue, sale or distribution or on the date of announcement thereof (whichever is less), then, for purposes of paragraph (a) above, the total maximum number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issue, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstandingoutstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) immediately prior to such Common Stock Distributionbelow, plus (2) no additional adjustment of the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at purchasable upon exercise of this Warrant or of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(as hereinafter definedd) If the purchase price provided for in any Option referred to in paragraph (b) above, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above, or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against, and having the effect of protecting against, dilution upon an event which results in a related adjustment pursuant to this Article IV), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions purchasable upon exercise of this paragraph (a) shall not operate to increase Warrant and the Exercise Price or then in effect shall forthwith be readjusted (effective only with respect to reduce any exercise of this Warrant after such readjustment) to the number of shares of Common Stock subject to purchase purchasable upon exercise of this WarrantWarrant and the Exercise Price which would then be in effect had the adjustment made upon the issue, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be; provided, however, that such readjustment shall give effect to such change only with respect to such Options and Convertible Securities as then remain outstanding. If, at any time after any adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price shall have been made pursuant to this Article IV on the basis of the issuance of any Option or Convertible Securities or after any new adjustments of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price shall have been made pursuant to this paragraph, the right of conversion, exercise or exchange in such Option or Convertible Securities shall expire or terminate, and the right of conversion, exercise 13 -13- or exchange in respect of a portion of such Option or Convertible Securities shall not have been exercised, such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such Option or Convertible Securities on the basis of treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise of such right of conversion, exercise or exchange as having been issued on the date or dates of such conversion, exercise or exchange and for the consideration actually received and receivable therefor, and treating any such Option or Convertible Securities which then remain outstanding as having been granted or issued immediately after the time of any such issuance for the consideration per share for which shares of Common Stock are issuable under such Option or Convertible Securities; and, if and to the extent called for by the foregoing provisions of this Section on the basis aforesaid, a new adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant and the Exercise Price shall be made, which new adjustment shall supersede (effective only with respect to any exercise of this Warrant after such readjustment) the previous adjustment so rescinded and annulled.
(be) If the Company shall after the date of issuance of this Warrant pay a dividend or make any shares other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities shall be issuedSecurities, sold or distributed then, for cashpurposes of paragraph (a) above, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of such Common Stock, Options or Convertible Securities shall be issuedSecurities, sold or distributed for a consideration other than cashas the case may be, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such have been issued or sold without consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the .
(f) nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without considerationfor consideration to be determined pursuant to the Appraisal Procedure.
(cg) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(dh) For purposes of determining whether any adjustment is required pursuant to this Article IV IV, any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation liquidation, dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shall, before the Loan Liquidation Date, issue or otherwise sell or distribute any shares of Common Stockshall issue, sell, distribute or otherwise grant in any manner shares of Common Stock, other than (whether directly or by assumption in a merger or otherwisei) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization Reorganization, (ii) shares issued pursuant to the exercise of options or warrants for the purchase of Common Stock Dividend outstanding on the date hereof or as reserved and ungranted as of the date hereof pursuant to the Company's 1998 Stock Option Plan, as amended, or the Company's 2001 Stock Plan (collectively, the "Stock Plan"), (iii) up to 920,000 shares of Common Stock issued upon the conversion of the convertible notes held by Laurus Master Fund, up to 1,360,000 shares of Common Stock issued upon the conversion of the Company's Series A Convertible Preferred Stock and up to 666,667 shares of Common Stock issued upon the conversion of the Company's Series B Convertible Preferred Stock, or (iv) shares of Common Stock issued upon the conversion or exercise of this Warrant, the warrant issued to Petra Mezzanine Fund, L.P ("Petra") under that certain Stock Purchase Warrant by and between the Company and Petra dated as of March 31, 2005 (the "Petra Warrant"), the warrant (the "Laddcap Warrant") issued to Laddcap Value Partners L.P. ("Laddcap") or that certain Stock Purchase Warrant (the "Initial Patriot Warrant") by and between Patriot Capital, L.P. and the Company dated as of May 27, 2005 (any such eventissuance, sale, distribution or grant being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than $1.25 per share (the "Investment Price") then the Exercise Price in effect on shall be adjusted as follows: the date of Exercise Price immediately prior to such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant Distribution shall be reduced to a price determined by multiplying such Exercise Price multiplied by a fraction, (A) the numerator of which shall be the sum of (1) the number of fully-diluted shares of Common Stock outstanding (assuming the conversion or deemed to be outstandingexercise of all outstanding securities convertible into or exercisable for shares of Common Stock) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock which that the aggregate consideration received by the Company in for such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined)Investment Price, and (B) the denominator of which shall be the sum of (1) the number of fully-diluted shares of Common Stock outstanding (assuming the conversion or deemed to be outstandingexercise of all outstanding securities convertible into or exercisable for shares of Common Stock) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock issued in such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Stock Purchase Warrant (Home Solutions of America Inc)
Common Stock Distribution. (a) If the Company shall, before the Loan Liquidation Date, issue or otherwise sell or distribute any shares of Common Stockshall issue, sell, distribute or otherwise grant in any manner shares of Common Stock, other than (whether directly or by assumption in a merger or otherwisei) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization Reorganization, (ii) not more than an aggregate of 20,000 shares of Common Stock issued pursuant to a transaction approved by the Board of Directors, (iii) an aggregate of not more than 3,500,000 shares issued pursuant to the exercise of options or warrants for the purchase of Common Stock Dividend outstanding on the date hereof or as reserved and ungranted as of the date hereof pursuant to the 1996 Stock Option Plan or any similar stock option or incentive plan of the Company approved by a majority of the Company's Board of Directors and, as required, shareholders (the "Stock Plan"), (iv) shares of Common Stock issued upon the conversion or exercise of the Series A Preferred Stock, the warrant issued to Holder on April 1, 2003 or this Warrant; or (v) shares of Common Stock and/or Option Securities (as defined below) issued in connection with the acquisition of Guideline Research Corporation ("Guideline"), including those shares of Common Stock issued to shareholders of Guideline as part of the One Year Deferred Compensation Amount (as defined in that certain Stock Purchase Agreement by and among Jay L. Friedland, Robert La Terra, Guideline Research Corporation anx xxx Cxxxxxx xx xxx xx its wholly-owned subsidiaries, dated as of April 1, 2003 (the "Acquisition Agreement"), but in all cases excluding any shares of Common Stock issued by the Company in connection with any indemnity obligations of the Company pursuant to the Acquisition Agreement (any such eventissuance, sale, distribution or grant in (i) through (v) being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than $1.25 per share (the "Investment Price") then the Exercise Price in effect on shall be adjusted as follows: the date of Exercise Price immediately prior to such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant Distribution shall be reduced to a price determined by multiplying such Exercise Price multiplied by a fraction, (A) the numerator of which shall be the sum of (1) the number of fully-diluted shares of Common Stock outstanding (assuming the conversion or deemed to be outstandingexercise of all outstanding securities convertible into or exercisable for shares of Common Stock) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock which that the aggregate consideration received by the Company in for such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined)Investment Price, and (B) the denominator of which shall be the sum of (1) the number of fully-diluted shares of Common Stock outstanding (assuming the conversion or deemed to be outstandingexercise of all outstanding securities convertible into or exercisable for shares of Common Stock) immediately prior to such Common Stock Distribution, plus (2) the number of shares of Common Stock issued in such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If In the event the Company shall, before at any ------------------------- time or from time to time after the Loan Liquidation Datedate hereof, issue issue, sell or otherwise sell or distribute (including by way of deemed distributions pursuant to paragraphs (c) and (d) below) any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise other than pursuant to a Common Stock Reorganization Change of Shares or Stock Dividend the exercise of any Option, Convertible Security (each as defined in paragraph (c) below) or Warrant) (any such event, including any deemed distributions described in paragraphs (c) and (d), being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price current market price per share of Common Stock (as defined in effect paragraph (f) below), on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Purchase Price for each Warrant shall be reduced to a the price (calculated to the nearest 1,000th of one cent) determined by multiplying the Purchase Price in effect immediately prior to such Exercise Price Common Stock Distribution by a fraction, (A) the numerator of which shall be the sum of (1i) the number of shares of Common Stock outstanding (or deemed to be outstandingexclusive of any treasury shares) immediately prior to such Common Stock Distribution multiplied by the current market price per share of Common Stock on the date of such Common Stock Distribution, plus (2ii) the number of shares of Common Stock which the aggregate consideration consideration, if any, received by the Company in upon such Common Stock Distribution would purchase at the Exercise Price (as hereinafter defined)Distribution, and (B) the denominator of which shall be the product of (1A) the total number of shares of Common Stock outstanding (exclusive of any treasury shares) immediately after such Common Stock Distribution multiplied by (B) the current market price per share of Common Stock on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Purchase Price pursuant to the foregoing provisions of this paragraph (b), including by operation of paragraph (c) or deemed (d) below, then, effective at the time such adjustment is made, the number of shares of Common Stock purchasable upon the exercise of each Warrant shall be increased to be outstanding) a number determined by multiplying the number of such shares so purchasable immediately prior to such Common Stock DistributionDistribution by a fraction, plus (2) the number numerator of shares which shall be the Purchase Price in effect immediately prior to such adjustment and the denominator of which shall be the Purchase Price in effect immediately after such additional stock so issued or sold (or deemed issued or sold) adjustment. In computing adjustments under this paragraph, fractional interests in the Common Stock Distributionshall be taken into account to the nearest 1,000th of a share. The provisions of this paragraph (ab), including by operation of paragraph (c) or (d) below, shall not operate to increase the Exercise Purchase Price or to reduce the number of shares of Common Stock subject to purchase purchasable upon the exercise of this any Warrant, except by operation of paragraph (j) or (k) below.
(b) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Warrant Agreement (Systems Applications International Inc)
Common Stock Distribution. (a) If the Company shallHoldings shall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise other than pursuant to a Common Stock Reorganization or Stock Dividend (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a “"Common Stock Distribution”"), if such Common Stock Distribution shall be for a consideration per share less than the Exercise Price then in effect or less than the Fair Market Value of Holdings per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a price the lower of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i) and (ii) below or:
(i) by multiplying such Exercise Price by a fraction, dividing (A) an amount equal to the numerator sum of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock DistributionDistribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by Holdings upon such Common Stock Distribution by (B) the total number of shares of Common Stock which outstanding immediately after such Common Stock Distribution; and
(ii) by multiplying the aggregate consideration received by the Company Exercise Price in effect immediately prior to such Common Stock Distribution would purchase at by a fraction, the Exercise Price (as hereinafter defined), and (B) the denominator numerator of which shall be the sum of (1A) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, plus (2B) the number of shares of consideration, if any, received by Holdings upon such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions , and the denominator of this paragraph which shall be the product of (a1) shall not operate to increase the Exercise Price or to reduce the total number of shares of Common Stock subject to purchase upon exercise outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of this Warrant.
(b) If any shares of such Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewithStock Distribution. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities Distribution shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed require an adjustment to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.the
Appears in 1 contract
Samples: Warrantholders Rights Agreement (Lets Talk Cellular & Wireless Inc)
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to a Common Stock Reorganization (which shall be governed by Section 5.2 hereof) (any such event, including any event described in Section 5.3(b) or Section 5.3(c) below, being herein called a “Common Stock Distribution”), for a consideration per share that is less than the Market Price per share of Common Stock on the date of such Common Stock Distribution, then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced to the lowest of the prices (calculated to the nearest one-thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, plus (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price on the Business Day immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Market Price per share on the date of such Common Stock Distribution, plus (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) the Market Price per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this Section 5.3(a), including by operation of Section 5.3(b) or 5.3(c) below, then, effective at the time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) plus the number of shares of Common Stock with the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Market Price per share of Common Stock on the date of such Common Stock Distribution. In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this Section 5.3(a), including by operation of Section 5.3(b) or 5.3(c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If after the date hereof the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities in respect of such Options (any such event, being herein called a “Common Stock Distribution”)determined by dividing (i) the aggregate amount, if such Common Stock Distribution shall be any, received or receivable by the Company as consideration for a consideration per share less than the Exercise Price in effect on the date granting of such Common Stock DistributionOptions, thenplus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, effective upon such Common Stock Distributionplus, in the case of Options to acquire Convertible Securities, the Exercise Price for each Warrant shall be reduced to a price determined minimum aggregate amount of additional consideration, if any, payable upon the issuance or sale of such Convertible Securities and upon the conversion or exchange thereof, by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock outstanding (issuable upon the exercise of such Options or deemed to upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be outstanding) immediately prior to such less than the Market Price per share of Common Stock Distributionon the date of granting such Options, plus (2then, for purposes of Section 5.3(a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration of such price per share, determined as provided above, therefor. Except as otherwise provided in this Warrant (including Sections 5.3(d) and 5.3(g) below), no additional adjustment of the Exercise Price shall be made upon the actual exercise of any Options or upon conversion or exchange of any Convertible Securities, notwithstanding any change in the Market Price between the date of issuance, sale, distribution or grant and the date of exercise, conversion or exchange.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, plus the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock outstanding (issuable upon the conversion or deemed to exchange of all such Convertible Securities) shall be outstanding) immediately prior to such less than the Market Price per share of Common Stock Distribution, plus (2) on the number of shares date of such additional stock so issued issuance, sale or sold (or deemed issued or solddistribution, then, for purposes of Section 5.3(a) in above, the Common Stock Distribution. The provisions of this paragraph (a) shall not operate to increase the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in this Warrant (including Sections 5.3(d) and 5.3(g) below), no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of any Convertible Securities, notwithstanding any change in the Market Price between the date of issuance, sale or distribution and the date of conversion or exchange.
(d) If (i) the purchase price provided for in any Option referred to in Section 5.3(b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in Section 5.3(b) or 5.3(c) above or the rate at which any Convertible Securities referred to in Section 5.3(b) or 5.3(c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article V, in accordance with 5.6(b)), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this Section 5.3(d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this Section 5.3(d)).
(be) If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of Section 5.3(a) above, such Common Stock, Options or Convertible Securities shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewiththerefor. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving non-surviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue issuance and sale of other securities of the Company, together comprising one integral transaction in which no specific transaction, then such Options shall be deemed to have been issued (i) for such consideration is as shall be allocated to such Options by the parties thereto, or (ii) in the absense of such Options shall be deemed to have been issued an allocation by the parties thereto, by a reasonable determination made in good faith by the Board of Directors of the Company, or (iii) in the absence of such an allocation by the parties thereto and such a determination by the Board of Directors, without consideration.
(cg) The distribution of the Rights pursuant to the Rights Agreement shall not be considered to be a Common Stock Distribution unless both a “Distribution Date” and a “Section 11(a)(ii) Event” (in each case, as defined in the Rights Agreement) shall have occurred, in which case the later to occur of such events shall be deemed to constitute an issuance of rights to purchase Common Stock and, therefore, a Common Stock Distribution. If the Company shall take enter into a record new agreement that is comparable in purpose and effect to the Rights Agreement (as determined by the Board of Directors of the holders Company, whose determination shall be conclusive), the execution of the new agreement and a distribution under the new agreement of securities analogous to the distribution of Series A Junior Participating Preferred Stock under the Rights Agreement shall not be considered to be a Common Stock for Distribution but, consistent with the purpose of entitling them to receive immediately preceding sentence, a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold Distribution shall occur upon the declaration later to occur of such dividend or events analogous to a “Distribution Event” and a “Section 11(a)(ii) Event” under the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may beRights Agreement.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Warrant Agreement (Perini Corp)
Common Stock Distribution. (a) If the Company shall, before shall after the Loan Liquidation Date, date of issuance of this Warrant issue or otherwise sell or distribute any shares of Common Stock, otherwise than pursuant to a Common Stock Reorganization (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), if such Common Stock Distribution shall be for a consideration per share less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such Common Stock Distribution, or on the first date of the announcement of such Common Stock Distribution (whichever is less), then, effective upon such Common Stock Distribution, the number of shares of Common Stock purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of shares of Common Stock subject to purchase upon exercise of this Warrant by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution plus the number of shares of Common Stock issued (or deemed to be issued pursuant to paragraphs (b) and (c) below) in such Common Stock Distribution and the denominator of which shall be an amount equal to the sum of (A) the number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution, plus (B) the number of shares of Common Stock which the aggregate consideration, if any, received by the Company (determined as provided below) for such Common Stock Distribution would buy at the Fair Market Value thereof, as of the date immediately prior to such Common Stock Distribution or as of the date immediately prior to the date of announcement of such Common Stock Distribution (whichever is less). In the event of any such adjustment, the Exercise Price for each Warrant shall be adjusted to a number determined by dividing the Exercise Price immediately prior to such Common Stock Distribution by the fraction used for purposes of the aforementioned adjustment. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall after the date of issuance of this Warrant issue, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities (any determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such eventOptions, being herein called a “plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock Distribution”), if issuable upon the exercise of such Common Stock Distribution Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be for a consideration per share less than the Exercise Price in effect Fair Market Value per share of outstanding Common Stock of the Company on the date of granting such Options or on the date of announcement thereof (whichever is less), then for purposes of paragraph (a) above, the total maximum number of shares of Common Stock Distribution, then, effective issuable upon the exercise of such Common Stock Distribution, Options or upon conversion or exchange of the Exercise Price for each Warrant total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be reduced deemed to a price determined by multiplying have been issued as of the date of granting of such Exercise Price by a fraction, (A) the numerator of which Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (1d) below, no additional adjustment of the number of shares of Common Stock purchasable upon the exercise of this Warrant or of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall after the date of issuance of this Warrant issue, sell or otherwise distribute or grant (whether directly or by assumption in a merger or otherwise) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate amount received or receivable by the Company as consideration for the issue, sale or distribution of such Convertible Securities, plus, the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such issue, sale or distribution or on the date of announcement thereof (whichever is less), then, for purposes of paragraph (a) above, the total maximum number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issue, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstandingoutstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) immediately prior to such Common Stock Distributionbelow, plus (2) no additional adjustment of the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at purchasable upon exercise of this Warrant or of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(as hereinafter definedd) If the purchase price provided for in any Option referred to in paragraph (b) above, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above, or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against, and having the effect of protecting against, dilution upon an event which results in a related adjustment pursuant to this Article IV), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions purchasable upon exercise of this paragraph (a) shall not operate to increase Warrant and the Exercise Price or then in effect shall forthwith be readjusted (effective only with respect to reduce any exercise of this Warrant after such readjustment) to the number of shares of Common Stock subject to purchase purchasable upon exercise of this WarrantWarrant and the Exercise Price which would then be in effect had the adjustment made upon the issue, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be; PROVIDED, HOWEVER, that such readjustment shall give effect to such change only with respect to such Options and Convertible Securities as then remain outstanding. If, at any time after any adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price shall have been made pursuant to this Article IV on the basis of the issuance of any Option or Convertible Securities or after any new adjustments of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price shall have been made pursuant to this paragraph, the right of conversion, exercise or exchange in such Option or Convertible Securities shall expire or terminate, and the right of conversion, exercise or exchange in respect of a portion of such Option or Convertible Securities shall not have been exercised, such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such Option or Convertible Securities on the basis of treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise of such right of conversion, exercise or exchange as having been issued on the date or dates of such conversion, exercise or exchange and for the consideration actually received and receivable therefor, and treating any such Option or Convertible Securities which then remain outstanding as having been granted or issued immediately after the time of any such issuance for the consideration per share for which shares of Common Stock are issuable under such Option or Convertible Securities; and, if and to the extent called for by the foregoing provisions of this Section on the basis aforesaid, a new adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant and the Exercise Price shall be made, which new adjustment shall supersede (effective only with respect to any exercise of this Warrant after such readjustment) the previous adjustment so rescinded and annulled.
(be) If the Company shall after the date of issuance of this Warrant pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities, as the case may be, shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net prior to deduction of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after prior to deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without considerationfor consideration to be determined pursuant to the Appraisal Procedure.
(cg) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(dh) For purposes of determining whether any adjustment is required pursuant to this Article IV IV, any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation liquidation, dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Common Stock Distribution. (a) If the Company shall, before shall after the Loan Liquidation Date, date of issuance of this Warrant issue or otherwise sell or distribute any shares of Common Stock, otherwise than (i) pursuant to a Common Stock Reorganization, an underwritten public offering, a transfer of Company securities to a third party in connection with a business development transaction (e.g., a joint marketing or joint technology development transaction), or an exercise of stock options granted to officers, directors or employees of the Company, or (ii) pursuant to a private placement of Common Stock (A) at least 50% of the proceeds of which are used to pay down the Note, dated the date hereof, from DynTek to DynCorp (the "Note"), or (B) a portion of the proceeds of which are used to pay the full amount outstanding under the Note (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "Common Stock Distribution"), if such Common Stock Distribution shall be for a consideration per share less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such Common Stock Distribution, or on the first date of the announcement of such Common Stock Distribution (whichever is less), then,
(A) effective upon such Common Stock Distribution, the number of shares of Common Stock purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of shares of Common Stock subject to purchase upon exercise of this Warrant by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution plus the number of shares of Common Stock issued (or deemed to be issued pursuant to paragraphs (b) and (c) below) in such Common Stock Distribution and the denominator of which shall be an amount equal to the sum of (x) the number of shares of Common Stock outstanding (and issuable upon exercise or conversion of outstanding options, warrants and convertible securities) immediately prior to such Common Stock Distribution, plus (y) the number of shares of Common Stock which the aggregate consideration, if any, received by the Company (determined as provided below) for such Common Stock Distribution would buy at the Fair Market Value thereof, as of the date immediately prior to such Common Stock Distribution or as of the date immediately prior to the date of announcement of such Common Stock Distribution (whichever is less), and
(B) In the event of any such adjustment, the Exercise Price for each Warrant shall be adjusted to a number determined by dividing the Exercise Price immediately prior to such Common Stock Distribution by the fraction used for purposes of the aforementioned adjustment. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or to reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall after the date of issuance of this Warrant issue, sell, distribute or otherwise grant in any manner (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or other than options granted to employees of the Company or its subsidiariesdirectors) for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “"Options” " and such convertible or exchangeable stock or securities being herein called “"Convertible Securities”"), otherwise than pursuant whether or not such Options or the rights to a convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock Reorganization is issuable upon the exercise of such Options or Stock Dividend upon conversion or exchange of such Convertible Securities (any determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such eventOptions, being herein called a “plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of Options to acquire Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total number of shares of Common Stock Distribution”)issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options, if in each case, for such Common Stock Distribution aggregate consideration) shall be for a consideration per share less than the Exercise Price in effect Fair Market Value per share of outstanding Common Stock of the Company on the date of granting such Options or on the date of announcement thereof (whichever is less), then for purposes of paragraph (a) above, the total number of shares of Common Stock Distribution, then, effective issuable upon the exercise of such Common Stock Distribution, Options or upon conversion or exchange of the Exercise Price for each Warrant total amount of such Convertible Securities issuable upon the exercise of such Options shall be reduced deemed to a price determined by multiplying have been issued as of the date of granting of such Exercise Price by a fraction, (A) the numerator of which Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (1d) below, no additional adjustment of the number of shares of Common Stock purchasable upon the exercise of this Warrant or of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall after the date of issuance of this Warrant issue, sell or otherwise distribute or grant (whether directly or by assumption in a merger or otherwise) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate amount received or receivable by the Company as consideration for the issue, sale or distribution of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (ii) the total number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities, in each case, for such aggregate consideration) shall be less than the Fair Market Value per share of outstanding Common Stock of the Company on the date of such issue, sale or distribution or on the date of announcement thereof (whichever is less), then, for purposes of paragraph (a) above, the total number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issue, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstandingoutstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) immediately prior to such Common Stock Distributionbelow, plus (2) no additional adjustment of the number of shares of Common Stock which the aggregate consideration received by the Company in such Common Stock Distribution would purchase at purchasable upon exercise of this Warrant or of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(as hereinafter definedd) If the purchase price provided for in any Option referred to in paragraph (b) above, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above, or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against, and having the effect of protecting against, dilution upon an event which results in a related adjustment pursuant to this Article IV), and (B) the denominator of which shall be (1) the number of shares of Common Stock outstanding (or deemed to be outstanding) immediately prior to such Common Stock Distribution, plus (2) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions purchasable upon exercise of this paragraph (a) shall not operate to increase Warrant and the Exercise Price or then in effect shall forthwith be readjusted (effective only with respect to reduce any exercise of this Warrant after such readjustment) to the number of shares of Common Stock subject to purchase purchasable upon exercise of this WarrantWarrant and the Exercise Price which would then be in effect had the adjustment made upon the issue, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be; PROVIDED, HOWEVER, that such readjustment shall give effect to such change only with respect to such Options and Convertible Securities as then remain outstanding. After any adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price pursuant to this Article IV on the basis of the issuance of any Option or Convertible Securities or after any new adjustments of the number of shares of Common Stock purchasable upon exercise of each Warrant or the Exercise Price pursuant to this paragraph, if the right of conversion, exercise or exchange in such Option or Convertible Securities shall expire or terminate, and the right of conversion, exercise or exchange in respect of a portion of such Option or Convertible Securities shall not have been exercised, such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such Option or Convertible Securities on the basis of treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise of such right of conversion, exercise or exchange as having been issued on the date or dates of such conversion, exercise or exchange and for the consideration actually received and receivable therefor, and treating any such Option or Convertible Securities which then remain outstanding as having been granted or issued immediately after the time of any such issuance for the consideration per share for which shares of Common Stock are issuable under such Option or Convertible Securities; and, if and to the extent called for by the foregoing provisions of this Section on the basis aforesaid, a new adjustment of the number of shares of Common Stock purchasable upon exercise of each Warrant and the Exercise Price shall be made, which new adjustment shall supersede (effective only with respect to any exercise of this Warrant after such readjustment) the previous adjustment so rescinded and annulled.
(be) If the Company shall after the date of issuance of this Warrant pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities, as the case may be, shall be deemed to have been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net before deduction of any underwriting discount commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting discount commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without considerationfor consideration to be determined pursuant to the Appraisal Procedure.
(cg) If the Company shall take establish a record of date with respect to the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(dh) For purposes of determining whether any adjustment is required pursuant to this Article IV IV, any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation liquidation, dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Warrant Agreement (Dyntek Inc)
Common Stock Distribution. (a) If the Company shallshall issue, before the Loan Liquidation Date, issue sell or otherwise sell or distribute any shares of Common Stock, other than pursuant to this Agreement or a Common Stock Reorganization (which is governed by Section 4.2 hereof) (any such event, including any event described in paragraphs (b) and (c) below, being herein called a "COMMON STOCK DISTRIBUTION"), for a consideration per share less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution), then, effective upon such Common Stock Distribution, the Exercise Price shall be reduced, if such consideration per share shall be less than such Fair Market Value per share, to the lowest of the prices (calculated to the nearest one thousandth of one cent) determined as provided in clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the Common Stock issued, sold or distributed, in such Common Stock Distribution, the consideration per share of Common Stock received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by the then existing Exercise Price, PLUS (2) the consideration, if any, received by the Company upon such Common Stock Distribution by (B) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior to such Common Stock Distribution by a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding immediately prior to such Common Stock Distribution multiplied by such Fair Market Value per share on the date of such Common Stock Distribution, PLUS (B) the consideration, if any, received by the Company upon such Common Stock Distribution, and the denominator of which shall be the product of (1) the total number of shares of Common Stock outstanding immediately after such Common Stock Distribution multiplied by (2) such Fair Market Value per share on the date of such Common Stock Distribution. If any Common Stock Distribution shall require an adjustment to the Exercise Price pursuant to the foregoing provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, then, effective at the time such adjustment is made, the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Distribution by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such Common Stock Distribution and the denominator of which shall be the sum of the number of shares outstanding immediately before giving effect to such Common Stock Distribution (both calculated on a Fully Diluted Basis) PLUS the number of shares of Common Stock which the aggregate consideration received by the Company with respect to such Common Stock Distribution would purchase at the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such Common Stock Distribution (before giving effect to such Common Stock Distribution). In computing adjustments under this paragraph, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. The provisions of this paragraph (a), including by operation of paragraph (b) or (c) below, shall not operate to increase the Exercise Price or reduce the number of shares of Common Stock subject to purchase upon exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant in any manner (whether directly or including by assumption in a merger or otherwiseassumption) any rights to subscribe for or to purchase, or any warrants or options (excluding warrants or options to employees of the Company or its subsidiaries) for the purchase of, of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” "OPTIONS" and such convertible or exchangeable stock or securities being herein called “"CONVERTIBLE SECURITIES"), whether or not such Options or the rights to convert or exchange any such Convertible Securities in respect of such Options are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such Options or upon conversion or exchange of such Convertible Securities in respect of such Options (determined by dividing (i) the aggregate amount, if any, received or receivable by the Company as consideration for the granting of such Options, PLUS the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, PLUS, in the case of Options to acquire Convertible Securities”), otherwise than pursuant to a Common Stock Reorganization or Stock Dividend (any such event, being herein called a “Common Stock Distribution”)the minimum aggregate amount of additional consideration, if such Common Stock Distribution shall be for a consideration per share less than any, payable upon the Exercise Price in effect on the date issuance or sale of such Common Stock DistributionConvertible Securities and upon the conversion or exchange thereof, then, effective upon such Common Stock Distribution, the Exercise Price for each Warrant shall be reduced to a price determined by multiplying such Exercise Price by a fraction, (Aii) the numerator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of granting such Options (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributiongrant), plus then, for purposes of paragraph (2a) above, the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting of such Options and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual exercise of such Options or upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute (including by assumption) any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the aggregate consideration amount received or receivable by the Company in as consideration for the issuance, sale or distribution of such Common Stock Distribution would purchase at Convertible Securities, PLUS the Exercise Price minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (as hereinafter defined), and (Bii) the denominator of which shall be (1) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Fair Market Value of the Company per share of outstanding Common Stock on a Fully Diluted Basis on the date of such issuance, sale or distribution (or deemed to be outstanding) immediately prior before giving effect to such Common Stock Distributionissuance, plus (2sale or distribution) the number of shares of such additional stock so issued or sold (or deemed issued or sold) in the Common Stock Distribution. The provisions Convertible Securities, then, for purposes of this paragraph (a) shall not operate to increase above, the Exercise Price or to reduce the total maximum number of shares of Common Stock subject issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the issuance, sale or distribution of such Convertible Securities and thereafter shall be deemed to be outstanding and the Company shall be deemed to have received as consideration such price per share, determined as provided above, therefor. Except as otherwise provided in paragraph (d) below, no additional adjustment of the Exercise Price shall be made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to in paragraph (b) above or the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraph (b) or (c) above or the rate at which any Convertible Securities referred to in paragraph (b) or (c) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against dilution upon an event which results in a related adjustment pursuant to this Article IV), or (ii) any of such Options or Convertible Securities shall have terminated, lapsed or expired, then the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this WarrantWarrant after such readjustment) to the Exercise Price which would then be in effect had the adjustment made upon the issuance, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be (in the case of any event referred to in clause (i) of this paragraph (d)) or had such adjustment not been made (in the case of any event referred to in clause (ii) of this paragraph (d)).
(be) If the Company shall pay a dividend or make any shares other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (a) above, such Common Stock, Options or Convertible Securities shall be issued, sold or distributed for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor net of any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock, Options or Convertible Securities shall be issued, sold or distributed for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the Fair Market Value of such consideration, after deduction of any expenses incurred and any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the assets and business of the nonsurviving corporation as shall be attributable to such Common Stock, Options or Convertible Securities, as the case may be. If any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(c) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may bewithout consideration.
(d) For purposes of determining whether any adjustment is required pursuant to this Article IV any security of the Company having rights substantially equivalent to the Common Stock as to dividends or upon liquidation dissolution or winding up of the Company shall be treated as if such security were Common Stock.
Appears in 1 contract
Samples: Warrant Agreement (Advanced Life Sciences Holdings, Inc.)
