Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable: (a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith. (b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company. (c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration. (d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1. (e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 7 contracts
Samples: Warrant Agreement (Aviation Group Inc), Warrant Agreement (Aviation Group Inc), Warrant Agreement (Aviation Group Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Preferred Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Preferred Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Preferred Stock and shares of Common Preferred Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Preferred Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Preferred Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Preferred Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Preferred Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Preferred Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Preferred Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Preferred Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Preferred Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Preferred Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Preferred Stock into securities including shares of Common Preferred Stock shall be deemed to involve the issuance of such shares of Common Preferred Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Preferred Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Preferred Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 3 contracts
Samples: Underwriting Agreement (Awg LTD), Underwriting Agreement (Awg LTD), Underwriting Agreement (Awg LTD)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event In case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect "Exercise Price" on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the Exercise Price on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such sharesplus, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, or if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of the Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities; provided, however, that shares issuable upon the exercise of the Warrants shall not be included in such calculation.
Appears in 3 contracts
Samples: Warrant Agreement (Source Information Management Co), Warrant Agreement (Source Information Management Co), Warrant Agreement (Source Information Management Co)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 5.5 hereof, (ii) the issuance or sale of any shares of Common Stock issued upon resulting from the exercise or conversion of any optionsof the Company's securities outstanding as of the date hereof or any other securities sold on the date hereof), rights or warrants to subscribe for including shares of Common Stock, or (iii) shares of Common Stock issued upon held in the direct or indirect conversion or exchange of securities for shares of Common Stock)Company's treasury, for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, sale the Exercise Price shall (until another such issuance or sale) be reduced to the a price (calculated to the nearest full cent) equal to the quotient derived determined by dividing (iA) an amount equal to the sum of (aX) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately prior to the such issuance or sale of such sharessale, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.,
Appears in 3 contracts
Samples: Common Stock Purchase Warrant (Complete Wellness Centers Inc), Common Stock Purchase Warrant (Complete Wellness Centers Inc), Common Stock Purchase Warrant (Complete Wellness Centers Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) 6.6 hereof or the issuance or sale of any shares of Common Stock issued upon resulting from the exercise or conversion of any optionsof the Company's securities outstanding as of November 30, rights or warrants to subscribe for l995), including shares of Common Stock, or (iii) shares of Common Stock issued upon held in the direct or indirect conversion or exchange of securities for shares of Common Stock)Company's treasury, for a consideration per share less than the Market Price in effect immediately prior to Company's book value per share determined as of the issuance or sale of such shares, Company's most recent audited Balance Sheet or without consideration, then forthwith upon such issuance or sale, sale the Exercise Price shall (until another such issuance or sale) be reduced to the a price (calculated to the nearest full cent) equal to the quotient derived determined by dividing (iA) an amount equal to the sum of (aX) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately prior to the such issuance or sale of such sharessale, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as Stock provided by for in Section 9.3 6.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation adjustment to be made in accordance with this Section 9.16.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be cash, the amount of the cash portion of the consideration therefor shall be deemed to be the amount of cash have been received by the Company for such shares shall be (ori) the subscription price, if shares of Common Stock are offered by the Company for subscription, or (ii) the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before price (after deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or but before deducting any other expenses incurred in connection therewith), if such securities are sold to underwriters or dealers for public offering without a subscription offering, or (iii) the net amount of cash actually received by the Company for such securities, in any other case.
(b) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company, and otherwise than on the exercise of options, rights or warrants or the conversion or exchange of convertible or exchangeable securities) of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to have been received by the Company shall be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders on the basis of a record of values of similar property or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Companyservices.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without considerationdistribution.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (iib) of this Section 9.16.1.
(e) The number of shares of Common Stock at any one time outstanding shall be deemed to include the aggregate maximum number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, rights or warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 2 contracts
Samples: Warrant Agreement (Warren Resources Inc), Warrant Agreement (Warren Resources Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event In case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 2.7 (g) hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common StockStock (excluding shares of Common Stock issuable upon exercise of options, warrants or conversion rights granted as of the date hereof and 2,250,000 shares of Common Stock issuable upon exercise of options to be granted to members of the Company's management and up to a maximum of 750,000 of shares to be issued as compensation to certain persons), for a consideration per share less than Exercise Price on the Market Price in effect date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the Exercise Price on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such sharesplus, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 2.7 (c) hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.12.7(a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, or if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of the Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.12.7(a).
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities; provided, however, that shares issuable upon the exercise of the Warrants shall not be included in such calculation.
Appears in 2 contracts
Samples: Warrant Agreement (Invu Inc), Warrant Agreement (Invu Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the greater of the Market Price or the Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 2 contracts
Samples: Warrant Agreement (Aviation Group Inc), Warrant Agreement (Aviation Group Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuance or sales referred to in Section 5.5 hereof, the issuance or sale of any shares of Common Stock resulting from the exercise or conversion of any of the Company's securities outstanding as of the date hereof or any other securities sold on the date hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock)treasury, for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, sale the Exercise Price shall (until another such issuance or sale) be reduced to the a price (calculated to the nearest full cent) equal to the quotient derived determined by dividing (iA) an amount equal to the sum of (aX) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately prior to the such issuance or sale of such sharessale, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as Stock provided by for in Section 9.3 5.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation adjustment to be made in accordance with this Section 9.15.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be cash, the amount of the cash portion of the consideration therefor shall be deemed to be the amount of cash have been received by the Company for such shares shall be (ori) the subscription price, if shares of Common Stock are offered by the Company for subscription, or (ii) the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before price (after deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or but before deducting any other expenses incurred in connection therewith), if such securities are sold to underwriters or dealers for public offering without a subscription offering, or (iii) the net amount of cash actually received by the Company for such securities, in any other case.
(b) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company, and otherwise than on the exercise of options, rights or warrants or the conversion or exchange of convertible or exchangeable securities) of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to have been received by the Company shall be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders on the basis of a record of values of similar property or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Companyservices.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without considerationdistribution.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.of
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Complete Wellness Centers Inc), Common Stock Purchase Warrant (Complete Wellness Centers Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after during the date hereof Antidilution Period issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), New Securities for a consideration per share less than the Market Applicable Per Share Purchase Price (such price, the "New Price" and such New Price shall be deemed to equal $0.01 in effect immediately prior to the issuance or sale of event such shares, or New Securities are issued without consideration), then forthwith upon such issuance or sale, the Exercise Price each Purchaser shall (until another such issuance or sale) be reduced receive without payment of additional consideration to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total Company, that number of shares of Common Stock outstanding immediately prior equal to the issuance excess of (x) a fraction, the numerator or sale which is the portion of the Purchase Price paid by such sharesPurchaser and the denominator of which is the New Price, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and over (by) the aggregate sum of the amount number of all consideration, if any, Shares received by such Purchaser pursuant this Agreement at the Company upon Closing pursuant to Article I and the number of Shares of Common Stock received by such issuance or sale, by (iiPurchaser pursuant to prior application of this Section 3.9(a). No fractional shares shall be issued pursuant to this Section 3.9(a) and the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event to be issued shall be rounded down to the Exercise Price be adjusted nearest whole share. If a fractional share interest arises pursuant to this computation to Section 3.9(a), the Company shall eliminate such fractional share interest by paying the respective Purchaser an amount in excess equal to the product of the Exercise Price in effect immediately prior to such computation, except in fractional share interest and the case fair market value of a combination of outstanding shares full share of Common Stock, as provided by Section 9.3 hereof. For the purposes of this Section 9 3.9, the term Exercise Price "Antidilution Period" shall mean the Exercise period of time between the date of this Agreement and the date which is 30 days following the effective date of the Registration Statement. For purposes of this Section 3.9, the "Applicable Per Share Purchase Price" shall initially equal the Per Share Purchase Price per share of Common Stock at the Closing (as set forth in Section 7 hereof1.1), as adjusted from time to time pursuant but shall be reduced to the provisions New Price in the event New Securities are issued for a consideration per share less than the Applicable Per Share Purchase Price in effect at such time of issuance, and the Applicable Per Share Purchase Price shall also be further adjusted as otherwise provided in this Section 93.9. For the purposes of any computation to be made in accordance with this Section 9.13.9, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock New Securities for a consideration part or all of which that shall be cash, the amount of the cash consideration therefor consideration, shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.shares;
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock New Securities for a consideration part or all of which shall be other than cash, the amount of the consideration therefor therefore other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.;
(ciii) Shares of Common Stock New Securities issuable by way of dividend or other distribution on any capital stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.; and
(div) The reclassification of securities of the Company other than shares of Common Stock New Securities into securities including shares of Common Stock New Securities shall be deemed to involve the issuance of such shares of Common Stock New Securities for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock New Securities shall be determined as provided in subsection (iib) of this Section 9.1.
(e) 3.9. The number of shares of Common Stock New Securities at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of then outstanding options, rights, warrants and upon the conversion or exchange of then outstanding convertible or exchangeable securities.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Socket Communications Inc), Securities Purchase Agreement (Socket Communications Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in subparagraph (g) of this section 8), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Purchase Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Purchase Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Purchase Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Purchase Price be adjusted pursuant to this computation to an amount in excess of the Exercise Purchase Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes subparagraph (c) of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9section 8. For the purposes of any computation to be made in accordance with this Section 9.1subparagraph (a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders shareholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection subparagraph (iia) of this Section 9.1section 8.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securitiessecurities exclusive of any option under the Company 1996 Stock Option Plan and any additional options which are not vested or then exercisable.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant Agreement (Translation Group LTD), Common Stock Purchase Warrant Agreement (Translation Group LTD)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event In case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 2.7 (g) hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common StockStock (excluding shares of Common Stock issuable upon exercise of options, warrants or conversion rights granted as of the date hereof), for a consideration per share less than Exercise Price on the Market Price in effect date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the Exercise Price on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such sharesplus, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 2.7 (c) hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.12.7(a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, or if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of the Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.12.7(a).
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities; provided, however, that shares issuable upon the exercise of the Warrants shall not be included in such calculation.
Appears in 2 contracts
Samples: Warrant Agreement (Hertz Technology Group Inc), Warrant to Purchase Common Stock (Fusion Networks Holdings Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants warrants, to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares or the "Market Price" (as defined in Section 8.1(vi) hereof) per share of Common Stock on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the lower of (i) the Exercise Price in effect immediately prior to such issuance or sale and (ii) the Market Price per share of Common Stock on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.8.3
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) 5.5 hereof or the issuance or sale of any shares of Common Stock issued upon resulting from the exercise or conversion of any of the Company's securities, including without limitation warrants, options, rights or warrants to subscribe for and contract rights, outstanding on the date hereof), including shares of Common Stock, or (iii) shares of Common Stock issued upon held in the direct or indirect conversion or exchange of securities for shares of Common Stock)Company's treasury, for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, sale the Exercise Price shall (until another such issuance or sale) be reduced to the a price (calculated to the nearest full cent) equal to the quotient derived determined by dividing (iA) an amount equal to the sum of (aX) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately prior to the such issuance or sale of such sharessale, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as Stock provided by for in Section 9.3 5.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation adjustment to be made in accordance with this Section 9.15.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be cash, the amount of the cash portion of the consideration therefor shall be deemed to be the amount of cash have been received by the Company for such shares shall be (ori) the subscription price, if shares of Common Stock are offered by the Company for subscription, or (ii) the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before price (after deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or but before deducting any other expenses incurred in connection therewith), if such securities are sold to underwriters or dealers for public offering without a subscription offering, or (iii) the net amount of cash actually received by the Company for such securities, in any other case.
(b) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company, and otherwise than on the exercise of options, rights or warrants or the conversion or exchange of convertible or exchangeable securities) of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to have been received by the Company shall be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders on the basis of a record of values of similar property or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Companyservices.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without considerationdistribution.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (iib) of this Section 9.15.1.
(e) The number of shares of Common Stock at any one time outstanding shall be deemed to include the aggregate maximum number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, . rights or warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Complete Wellness Centers Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event In case the Company shall at any time after the date hereof and until this Warrant is fully exercised or terminated issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 2.7 (f) hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common StockStock (excluding shares of Common Stock issuable upon exercise of options, warrants or conversion rights granted as of the date hereof), for a consideration per share less than the Market Exercise Price in effect immediately on the trading date one day prior to the date of issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the Exercise Price on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such sharesplus, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that (i) in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 2.7 (c) hereof. For the purposes of this Section 9 the term Exercise Price , and (ii) in no event shall mean the Exercise Price be adjusted pursuant to this computation where the consideration per share of Common Stock set forth in Section 7 hereof, as adjusted from time although less than the Exercise Price is equal to time pursuant or greater than the closing Market Price on the trading date one day prior to the provisions date of this Section 9issuance or sale of such shares. For the purposes of any computation to be made in accordance with this Section 9.12.7(a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, or if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of the Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.12.7(a).
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities; provided, however, that shares issuable upon the exercise of the Warrants shall not be included in such calculation.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- providedprovided and subject to Section 2.6 hereof, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), Equivalents for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 2.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.12.1, the following provisions shall be applicableapply:
(a) In case the event of the issuance or sale of shares of Common Stock for a consideration consideration, part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, or if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case the event of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any capital stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (iib) of this Section 9.12.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securitiesCommon Stock Equivalents.
Appears in 1 contract
Samples: Financial Advisory and Investment Banking Agreement (Diomed Holdings Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
: (ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.initial
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Robotic Lasers Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in subparagraph (g) of this section 8), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Purchase Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Purchase Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Purchase Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Purchase Price be adjusted pursuant to this computation to an amount in excess of the Exercise Purchase Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes subparagraph (c) of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9section 8. For the purposes of any computation to be made in accordance with this Section 9.1subparagraph (a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders shareholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection subparagraph (iia) of this Section 9.1section 8.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Common Stock Purchase Warrant Agreement (Dynamic International LTD)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding ou tstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
: (ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event In case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 2.7 (f) hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common StockStock (excluding shares of Common Stock issuable upon exercise of options, warrants or conversion rights granted as of the date hereof), for a consideration per share less than Exercise Price on the Market Price in effect date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the Exercise Price on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such sharesplus, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 2.7 (c) hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.12.7(a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of 212 Common Stock are offered by the Company for subscription, the subscription price, or, or if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of the Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.12.7(a).
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities; provided, however, that shares issuable upon the exercise of the Warrants shall not be included in such calculation.
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Scores Holding Co Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common its Stock including shares held (as defined in the Company's treasury (Section 5(g)), other than (i) the issuances or sales referred to in Section 9.7 5(h) hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and multiplied by (b) the total number of shares of Stock outstanding immediately prior to such issuance or sale, plus (Y) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 5(c) hereof. For the purposes of this Section 9 5 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereofon the first page of this Warrant, as adjusted from time to time pursuant to the provisions of this Section 9. 5.
a. For the purposes of any computation to be made in accordance with this Section 9.15(a), the following provisions shall be applicable:
(a) b. In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor consideration, shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offeringprice, the initial public offering price) , before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other persons or entities performing similar services), or any expenses incurred in connection therewiththerewith and less any amounts payable to security holders or any affiliate thereof, including, without limitation, any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts shall be valued at the aggregate amount payable thereunder whether such payments are absolute or contingent and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof.
(b) c. In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) d. Shares of Common Stock issuable by way of dividend or other distribution on any capital stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) e. The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.15(v).
(e) f. The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of then outstanding options, rights, warrants warrants, and upon the conversion or exchange of convertible or and exchangeable securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Carsunlimited Com Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event In case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 2.7 (g) hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common StockStock (excluding shares of Common Stock issuable upon exercise of options, warrants or conversion rights granted as of the date hereof), for a consideration per share less than Exercise Price on the Market Price in effect date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the Exercise Price on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such sharesplus, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 2.7 (c) hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.12.7(a), the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Scores Holding Co Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in subparagraph (g) of this section 8), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Purchase Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Purchase Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Purchase Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Purchase Price be adjusted pursuant to this computation to an amount in excess of the Exercise Purchase Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes subparagraph (c) of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9section 8. For the purposes of any computation to be made in accordance with this Section 9.1subparagraph (a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.allowed
Appears in 1 contract
Samples: Common Stock Purchase Warrant Agreement (Dynamic International LTD)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall issue or sell, or any Company subsidiary shall sell, any shares of Common Stock at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 8.3 or 8.7 hereof), including shares held in the treasury of the Company or by any Company subsidiary (iibut excluding (i) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for and shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for and (ii) shares issued pursuant to employee or director benefit plans approved by a majority of Common Stockthe entire Board of Directors of the Company or any Company subsidiary, as the case may be), for a consideration per share less than the Market Price in effect per share of Common Stock on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Common Stock Exercise Price shall (until another such issuance or sale) be reduced sale or other event giving rise to an adjustment to the price Common Stock Exercise Price pursuant to this Section 8) be adjusted (calculated to the nearest full cent) equal by multiplying the Common Stock Exercise Price in effect immediately prior to such issuance or sale by the quotient derived by dividing (ia) an amount equal to the sum of (a1) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (b2) the number of shares of Common Stock that the aggregate of the amount of all consideration, if any, consideration received by the Company upon in connection with such issuance or salesale would purchase at such Market Price, by (iib) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Common Stock Exercise Price be adjusted pursuant to this computation to an amount in excess of the Common Stock Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, Stock as provided by Section 9.3 8.3 hereof. For As used herein, the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share “Market Price” of Common Stock set forth at any date shall be deemed to be the last reported sale price (expressed as a dollar value per share) or, in Section 7 hereofcase no such reported sale takes place on such day, the average of the last reported sale prices for the last three (3) trading days, in either case as officially reported by the principal securities exchange on which the Common Stock is listed or admitted to trading or, if not so listed or admitted, by the National Association of Securities Dealers Automated Quotation System (“NASDAQ”) National Market System (“NASDAQ/NMS”) or, if not approved for quotation on the NASDAQ/NMS, the average of the closing bid and asked prices as furnished by the National Association of Securities Dealers, Inc. (the “NASD”) through NASDAQ or a similar organization if NASDAQ is no longer reporting such information or, if such security is not quoted on NASDAQ, as adjusted from time determined reasonably and in good faith by resolution of the Board of Directors of the Company, based on the best information available to time pursuant to the provisions of this Section 9it. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In in case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor therefore shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either shares of such securities Common Stock shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, services or any expenses incurred in connection therewith.;
(bii) In in case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor therefore other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout earned or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; , all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) Holder does not agree with such evaluationvaluation, a mutually acceptable independent appraiser shall make such evaluationvaluation, the cost of which shall be borne 50% by the Company.Company and 50% by the Holders;
(ciii) Shares shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company other than the Common Stock shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.;
(div) The reclassification of securities of the Company (other than shares of Common Stock Stock) into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.8.1; and
(ev) The the number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) ), upon the exercise of options, rights, rights and warrants and upon the conversion or exchange of convertible or exchangeable securities, but shall exclude the aggregate number of shares held by Company subsidiaries for the Company’s benefit.
Appears in 1 contract
Samples: Merger Agreement (Xto Energy Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event In case the Company shall at any time after the date hereof and until this Warrant is fully exercised issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 2.6 (f) hereof), (ii) including shares held in the Company’s treasury and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common StockStock (excluding shares of Common Stock issuable upon exercise of options, warrants or conversion rights granted as of the date hereof), for a consideration per share less than the Market Exercise Price in effect on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the Exercise Price on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such sharesplus, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 2.6 (c) hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.12.6(a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, or if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of the Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.12.6(a).
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities; provided, however, that shares issuable upon the exercise of the Warrants shall not be included in such calculation.
Appears in 1 contract
Samples: Warrant Agreement (Xinhua China LTD)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) but excluding shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for and shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares or pursuant to employee benefit plans approved by a majority of Common Stockthe Company's entire Board of Directors), for a consideration per share less than the Market Price in effect per share of Common Stock on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Common Stock Exercise Price shall (until another such issuance or sale) sale or other event giving rise to an adjustment to the Common Stock Exercise Price pursuant to this Section 8) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (b) the number of shares of Common Stock which the aggregate of the amount of all consideration, if any, consideration received by the Company upon in connection with such issuance or salesale would purchase at such Market Price, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Common Stock Exercise Price be adjusted pursuant to this computation to an amount in excess of the Common Stock Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, Stock as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8, the term Common Stock Exercise Price shall mean the Common Stock Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith8.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in If and whenever on or after the event Subscription Date (i) the Company shall at any time after the date hereof issue issues or sell sells, or in accordance with this Section 2 is deemed to have issued or sold, any shares of Common Stock (including shares held in the Company's treasury (other than (i) the issuances issuance or sales referred to in Section 9.7 hereof, (ii) sale of shares of Common Stock issued upon owned or held by or for the exercise account of any optionsthe Company, rights or warrants to subscribe for shares of Common Stock, or (iii) but excluding shares of Common Stock deemed to have been issued upon by the direct or indirect conversion or exchange of securities for shares of Common Stock), Company in connection with any Excluded Securities) for a consideration per share (the "New Issuance Price") less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the a price (calculated to the nearest full cent"Applicable Price") equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issue or sale or deemed issuance or salesale (the foregoing a "Dilutive issuance"), and (b) then immediately after such Dilutive Issuance the aggregate Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. Upon each such adjustment of the amount Exercise Price hereunder, the number of all consideration, if any, received by Warrant Shares shall be adjusted to the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock equal to (x) the product of (i) the Common Stock deemed outstanding immediately after following such issuance or sale; provided, however, that in no event shall adjustment and Dilutive Issuance and (ii) the Exercise Price be adjusted pursuant to number of Warrant Shares acquirable upon exercise of this computation to an amount in excess of the Exercise Price in effect Warrant immediately prior to such computationadjustment and Dilutive Issuance, except in divided by (y) the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time deemed outstanding immediately prior to time pursuant to the provisions of this Section 9such adjustment and Dilutive Issuance. For the purposes of any computation to be he made in accordance with this Section 9.12.7(a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, or if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, . the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of the Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, . and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.12.7(a).
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities; provided, however, that shares issuable upon the exercise of the Warrants shall not be included in such calculation.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event In case the Company shall at any time after the date hereof and until this Warrant is fully exercised issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 2.7(f) hereof), (ii) including shares held in the Company’s treasury and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common StockStock (excluding shares of Common Stock issuable upon exercise of options, warrants or conversion rights granted as of the date hereof), for a consideration per share less than the Market Exercise Price in effect on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the Exercise Price on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such sharesplus, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 2.7(c) hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, 2.7(a) the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor therefore shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, or if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offeringprice, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, services or any expenses incurred in connection therewith.
. (bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor therefore other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Bridge Loan Credit Agreement (First Look Studios Inc)
Computation of Adjusted Exercise Price. Except as ----------- -- -------- -------- ----- hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances referred to in Section 8(g) hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants warrants, to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (aX) the product of (a)the Exercise Price in effect immediately prior to such issuance or sale, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8(c) hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities."Exercise
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock Stock, including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Exercise Price per share of Common Stock issuable upon exercise of the Warrants, as in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the such Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the such Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 the term Exercise Price , and provided, further, that in no event shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as be adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable:
(a) In case 8 as a direct consequence of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rightswarrants or other rights to cause the Company to issue shares of Common Stock in effect on the date hereof and described in the Prospectus included in the registration statement filed by the Company in connection with the Public Offering (the "Prospectus"), warrants including without limitation shares of Common Stock issuable upon conversion of that Convertible Promissory Note of the Company, dated as of October 30, 1996, in the aggregate principal amount of $7,863,000, and upon the conversion issuance of an aggregate of 2,000 shares to be issued to directors-elect of the Company as described in the Prospectus, or exchange as a direct consequence of convertible the issuance of options under stock option or exchangeable securitiesstock incentive plans that have been adopted by the Board of Directors on or before the date hereof, provided that such options have been granted with an exercise price no less than the fair market value of the shares of Common Stock or other securities for which such options may be exercised, on the date such options are granted.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Brunswick Technologies Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 8.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common its Stock including shares held (as defined in the Company's treasury (Section 4(g)), other than (i) the issuances or sales referred to in Section 9.7 4(h) hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and multiplied by (b) the total number of shares of Stock outstanding immediately prior to such issuance or sale, plus (Y) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 4(c) hereof. For the purposes of this Section 9 4 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereofon the first page of this Warrant, as adjusted from time to time pursuant to the provisions of this Section 9. 4.
(i) For the purposes of any computation to be made in accordance with this Section 9.14(a), the following provisions shall be applicable:
(aii) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offeringprice, the initial public offering price) , before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other persons or entities performing similar services), or any expenses incurred in connection therewith.
(biii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(civ) Shares of Common Stock issuable by way of dividend or other distribution on any capital stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(dv) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.14(a)(iii).
(evi) The If, in any case, the total number of shares of the Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of optionsany Option (as hereinafter defined) or upon exercise, rights, warrants and upon the conversion or exchange of convertible any Convertible Security (as hereinafter defined), is not, in fact, issued and the rights to exercise such Option or exchangeable securitiesto exercise, convert or exchange such Convertible Security shall have expired or terminated, the Exercise Price then in effect will be readjusted to the Exercise Price which would have been in effect at the time of such expiration or termination had such Option or Convertible Security, to the extent outstanding immediately prior to such expiration or termination (other than in respect of the actual number of shares of the Common Stock issued upon exercise or conversion thereof), never been issued.
Appears in 1 contract
Samples: Warrant Agreement (Vasomedical Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) 6.6 hereof or the issuance or sale of any shares of Common Stock issued upon resulting from the exercise or conversion of any optionsof the Company's securities outstanding as of September 30, rights or warrants to subscribe for 1993), including shares of Common Stock, or (iii) shares of Common Stock issued upon held in the direct or indirect conversion or exchange of securities for shares of Common Stock)Company's treasury, for a consideration per share less than the Market Price in effect immediately prior to Company's book value per share determined as of the issuance or sale of such shares, Company's most recent audited Balance Sheet or without consideration, then forthwith upon such issuance or sale, sale the Exercise Price shall (until another such issuance or sale) be reduced to the a price (calculated to the nearest full cent) equal to the quotient derived determined by dividing (iA) an amount equal to the sum of (aX) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately prior to the such issuance or sale of such sharessale, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as Stock provided by for in Section 9.3 6.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation adjustment to be made in accordance with this Section 9.16.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be cash, the amount of the cash portion of the consideration therefor shall be deemed to be the amount of cash have been received by the Company for such shares shall be (ori) the subscription price, if shares of Common Stock are offered by the Company for subscription, or (ii) the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before price (after deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or but before deducting any other expenses incurred in connection therewith), if such securities are sold to underwriters or dealers for public offering without a subscription offering, or (iii) the net amount of cash actually received by the Company for such securities, in any other case.
(b) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company, and otherwise than on the exercise of options, rights or warrants or the conversion or exchange of convertible or exchangeable securities) of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to have been received by the Company shall be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders on the basis of a record of values of similar property or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Companyservices.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without considerationdistribution.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (iib) of this Section 9.16.1.
(e) The number of shares of Common Stock at any one time outstanding shall be deemed to include the aggregate maximum number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, rights or warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Preferred Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (United States Financial Group Inc /Ny)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Representative's Warrant Agreement (New York Health Care Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 8.7 hereof), (ii) including shares held in the 14 Company's treasury and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Robotic Lasers Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event In case the Company shall at --------------------------------------- any time after the date hereof and until this Warrant is fully exercised issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 2.7 (f) hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common StockStock (excluding shares of Common Stock issuable upon exercise of options, warrants or conversion rights granted as of the date hereof), for a consideration per share less than the Market Exercise Price in effect on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the Exercise Price on the date immediately prior to the issuance or sale of such shares, multiplied by (b) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such sharesplus, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 2.7 (c) hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.12.7(a), the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Charys Holding Co Inc)
Computation of Adjusted Exercise Price. Except as -------------------------------------- hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.3 or 8.7 hereof), including shares held in the Company's treasury (other than but excluding (i) the issuances or sales referred to in Section 9.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for and shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for and (ii) shares issued pursuant to employee or director benefit plans approved by a majority of Common Stockthe Company's entire Board of Directors), for a consideration per share less than the Market Price in effect per share of Common Stock on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Common Stock Exercise Price shall (until another such issuance or sale) be reduced sale or other event giving rise to an adjustment to the price Common Stock Exercise Price pursuant to this Section 8) be adjusted (calculated to the nearest full cent) equal by multiplying the Common Stock Exercise Price in effect immediately prior to such issuance or sale by the quotient derived by dividing (ix) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (b) the number of shares of Common Stock which the aggregate of the amount of all consideration, if any, consideration received by the Company upon in connection with such issuance or salesale would purchase at such Market Price, by (iiy) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Common Stock Exercise Price -------- ------- be adjusted pursuant to this computation to an amount in excess of the Common Stock Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, Stock as provided by Section 9.3 8.3 hereof. For As used herein, the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share "Market Price" of Common Stock set forth at any date shall be deemed to be the last reported sale price (expressed as a dollar value per share) or, in Section 7 hereofcase no such reported sale takes place on such day, the average of the last reported sale prices for the last three (3) trading days, in either case as officially reported by the principal securities exchange on which the Common Stock is listed or admitted to trading or, if not so listed or admitted, by the National Association of Securities Dealers Automated Quotation System ("NASDAQ") National Market System ("NASDAQ/NMS") or, if not approved for quotation on the NASDAQ/NMS, the average closing bid price as furnished by the National Association of Securities Dealers, Inc. (the "NASD") through NASDAQ or a similar organization if NASDAQ is no longer reporting such information or, if such security is not quoted on NASDAQ, as adjusted from time determined in good faith by resolution of the Board of Directors of the Company, based on the best information available to time pursuant to the provisions of this Section 9it. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either shares of such securities Common Stock shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, services or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout earned or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; , all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) Holder does not -------- ------- agree with such evaluationvaluation, a mutually acceptable independent appraiser shall make such evaluationvaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company other than the Common Stock shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company (other than shares of Common Stock Stock) into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) , upon the exercise of options, rights, rights and warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 8.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price as set forth in effect immediately prior to the issuance or sale of such shares, or without considerationthis Section 8, then forthwith upon such issuance or saleissuance, the Exercise Price shall (until another such issuance or saleissuance) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or saleissuance, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or saleissuance, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or saleissuance; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock Share or per Warrant set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders shareholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (iib) of this Section 9.18.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securitiessecurities exclusive of 300,000 shares issuable upon options under the Company's 1996 Stock Option Plan and any additional options which are not vested or then exercisable.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Translation Group LTD)
Computation of Adjusted Exercise Price. Except as -------------------------------------- hereinafter -------------------------------------- provided, in the event case the Company shall issue or sell, or any Company subsidiary shall sell, any shares of Common Stock at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 8.3 or 8.7 hereof), including shares held in the treasury of the Company or by any Company subsidiary (iibut excluding (i) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for and shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for and (ii) shares issued pursuant to employee or director benefit plans approved by a majority of Common Stockthe entire Board of Directors of the Company or any Company subsidiary, as the case may be), for a consideration per share less than the Market Price in effect per share of Common Stock on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Common Stock Exercise Price shall (until another such issuance or sale) be reduced sale or other event giving rise to an adjustment to the price Common Stock Exercise Price pursuant to this Section 8) be adjusted (calculated to the nearest full cent) equal by multiplying the Common Stock Exercise Price in effect immediately prior to such issuance or sale by the quotient derived by dividing (ia) an amount equal to the sum of (a1) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (b2) the number of shares of Common Stock that the aggregate of the amount of all consideration, if any, consideration received by the Company upon in connection with such issuance or salesale would purchase at such Market Price, by (iib) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Common Stock Exercise Price be adjusted pursuant to this computation to an amount in excess of the Common Stock Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, Stock as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in subparagraph (g) of this section 8), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Purchase Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Purchase Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Purchase Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Purchase Price be adjusted pursuant to this computation to an amount in excess of the Exercise Purchase Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes subparagraph (c) of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9section 8. For the purposes of any computation to be made in accordance with this Section 9.1subparagraph (a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.received
Appears in 1 contract
Samples: Common Stock Purchase Warrant Agreement (Dynamic International LTD)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, or (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common StockStock outstanding on the date hereof, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities outstanding on the date hereof for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders Holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; , provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders Holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- --------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the grants, issuances or sales referred to in Section 7.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stockwarrants, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the lower at the price (calculated to the nearest full cent) equal to the quotient derived ), determined by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such shares, multiplied by the then existing Exercise Price in effect immediately prior to such issuance or salePrice, and (b) the aggregate amount of the amount of all consideration, if any, received by the Company upon such issuance or sale, sale by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in . In no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as an provided by Section 9.3 7.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.17.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) , in all cases before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(bii) In case came of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be he the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Companyaccounting treatment.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on an the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.17.1.
(ev) The number of shares of at Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance issu- ance thereof) upon the exercise of options, rights, warrants warrants, and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common its Stock including shares held (as defined in the Company's treasury (Section 8(e)) hereof other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii8(f) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), hereof for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced concurrently with such issue, to the a price (calculated to the nearest full cent) equal to the quotient derived by dividing (iA) an amount equal to the sum of (X) the product of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and multiplied by (b) the total number of shares of Stock outstanding immediately prior to such issuance or sale, plus (Y) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a subdivision or combination of outstanding shares of Common Stock, as provided by Section 9.3 8(c) hereof. For the purposes of this Section 9 8, the term Exercise Price shall mean the Exercise Price per share of Common for the Series A Preferred Stock set forth in Section 7 1 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18(a), the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor consideration, shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offeringprice, the initial public offering price) , before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other persons or entities performing similar services, or any expenses incurred in connection therewith) less any amounts payable to security holders or any affiliate thereof in connection with such issuance, including, without limitation, any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts shall be valued at the aggregate amount payable thereunder whether such payments are absolute or contingent and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any capital stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18(a)(ii).
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of then outstanding options, rights, warrants warrants, and upon the conversion or exchange of convertible or and exchangeable securities.
(vi) No adjustment shall be made to the Exercise Price then in effect upon the exercise of the Warrants.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, or (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common StockStock outstanding on the date hereof, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities outstanding on the date hereof for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders Holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders Holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof or issuance or sales upon the exercise of Stock Options issued pursuant to the Stock Plan (each as defined in Section 8.2 hereof)), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares or the "Fair Market Value" (as defined in Section 3.3 hereof) per share of Common Stock on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price lower of the prices (calculated to the nearest full cent) equal to the quotient derived determined as follows:
(1) by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such shares, multiplied by the then existing Exercise Price in effect immediately prior to such issuance or salePrice, and (b) the aggregate amount of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; and
(2) by multiplying the Exercise Price in effect immediately prior to the time of such issuance or sale 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 issuance or sale multiplied by the Fair Market Value immediately prior to such issuance or sale, plus (b) the aggregate amount of the consideration received by the Company upon such issuance or sale, and the denominator of which shall be the product of (x) the total number of shares of Common Stock outstanding immediately after such issuance or sale, multiplied by (y) the Fair Market Value immediately prior to such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to the computations in this computation Section 8.1 to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either shares of such securities shall be Common Stock are sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) , before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewiththerewith and less any amounts payable to security holders or any affiliate thereof, including without limitation, any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts shall be valued at the aggregate amount payable thereunder whether such payments are absolute or contingent and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof except if the payment of such amounts has, pursuant to this paragraph (i), has been approved by the Agent.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of then outstanding options, rights, warrants and upon the conversion or exchange of then outstanding convertible or exchangeable securities.
(vi) defined), the Warrants or the conversion or exchange of convertible or exchangeable securities outstanding as of the date hereof.
Appears in 1 contract
Samples: Warrant Agreement (Zymetx Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock Series A Preferred Stock, including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock)treasury, for a consideration per share less or greater than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares or the Fair Market Value (as defined in Section 3.3 hereof) of a share of Series A Preferred Stock on the last business day immediately preceding the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced or increased to the price (calculated to the nearest full cent) equal to the quotient derived determined by dividing (i) an amount equal to the sum of (aA) the total number of shares of Common Series A Preferred Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or salesale multiplied by the Exercise Price then in effect, and (bB) the aggregate amount of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Series A Preferred Stock outstanding immediately after such issuance or sale; and provided, however, that in no event shall the Exercise Price be adjusted pursuant to the computations in this computation Section 6.2 to an amount in excess of the Exercise Price in effect immediately prior to such computationas of the date hereof, except in the case of a combination of outstanding shares of Common Series A Preferred Stock, as provided by Section 9.3 6.4 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation to be made in accordance with this Section 9.16.2, the following provisions shall be applicable:
(a1) In case of the issuance or sale of shares of Common Series A Preferred Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Series A Preferred Stock are offered by the Company for subscription, the subscription price, or, if either shares of such securities shall be Series A Preferred Stock are sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) , before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith).
(b2) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Series A Preferred Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c3) Shares of Common Series A Preferred Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be he deemed to have been issued without consideration.
(d4) The reclassification of securities of the Company other than shares of Common Series A Preferred Stock into securities including shares of Common Series A Preferred Stock shall be deemed to involve the issuance of such shares of Common Series A Preferred Stock for a consideration other than cash immediately prior to after the close opening of business on the day following the record date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Series A Preferred Stock shall be determined as provided in subsection paragraph (ii2) of this Section 9.16.2.
(e5) The number of shares of Common Series A Preferred Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of then outstanding options, rights, warrants and upon the conversion or exchange of then outstanding securities convertible or exchangeable securitiesinto shares of Series A Preferred Stock.
(6) No adjustment shall he made to the Exercise Price then in effect upon (a) the exercise of the Warrants, or (b) to the extent that, pursuant to Section 6.1 hereof, the antidilution provisions of this agreement apply to dilution-related events with respect to the Common Stock, the conversion or exchange of convertible or exchangeable securities outstanding as of the date that Section 6.1 becomes effective with respect to the Common Stock.
Appears in 1 contract
Samples: Placement Agent Warrant Agreement (Flight Safety Technologies Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Representative's Warrant Agreement (New York Health Care Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof or issuance or sales upon the exercise of Stock Options issued pursuant to the Stock Plan (each as defined in Section 8.2 hereof)), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares or the "Fair Market Value" (as defined in 8 8 Section 3.3 hereof) per share of Common Stock on the date immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price lower of the prices (calculated to the nearest full cent) equal to the quotient derived determined as follows:
(1) by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the such issuance or sale of such shares, multiplied by the then existing Exercise Price in effect immediately prior to such issuance or salePrice, and (b) the aggregate amount of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; and
(2) by multiplying the Exercise Price in effect immediately prior to the time of such issuance or sale 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 issuance or sale multiplied by the Fair Market Value immediately prior to such issuance or sale, plus (b) the aggregate amount of the consideration received by the Company upon such issuance or sale, and the denominator of which shall be the product of (x) the total number of shares of Common Stock outstanding immediately after such issuance or sale, multiplied by (y) the Fair Market Value immediately prior to such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to the computations in this computation Section 8.1 to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either shares of such securities shall be Common Stock are sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) , before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewiththerewith and less any amounts payable to security holders or any affiliate thereof, including without limitation, any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts shall be valued at the aggregate amount payable thereunder whether such payments are absolute or contingent and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof except if the payment of such amounts has, pursuant to this paragraph (i), has been approved by the Agent.
(bii) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or 9 9 all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of then outstanding options, rights, warrants and upon the conversion or exchange of then outstanding convertible or exchangeable securities.
(vi) No adjustment shall be made to the Exercise Price then in effect upon the exercise of Stock Options issued pursuant to the Stock Plan (as hereinafter defined), the Warrants or the conversion or exchange of convertible or exchangeable securities outstanding as of the date hereof.
Appears in 1 contract
Samples: Warrant Agreement (Zymetx Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 8.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or any expenses incurred in connection therewith.
(b) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.1.
(e) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.a
Appears in 1 contract
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuances or sales referred to in Section 8.7 hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) and shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock), for a consideration per share less than the Market Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, the Exercise Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent) equal to the quotient derived by dividing (i) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the issuance or sale of such shares, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and (b) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as provided by Section 9.3 8.3 hereof. For the purposes of this Section 9 8 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 6 hereof, as adjusted from time to time pursuant to the provisions of this Section 98. For the purposes of any computation to be made in accordance with this Section 9.18.1, the following provisions shall be applicable:
(ai) In case of the issuance or sale of shares of Common Stock for a consideration part or all of which shall be cash, the amount of the cash consideration therefor shall be deemed to be the amount of cash received by the Company for such shares (or, if shares of Common Stock are offered by the Company for subscription, the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others other performing similar services, or any expenses incurred in connection therewith.
(bii) In case of the issuance or sale (other than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders or any affiliates thereof includingthereof, including without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that t hat if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Company.
(ciii) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without consideration.
(div) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (ii) of this Section 9.18.1.
(ev) The number of shares of Common Stock at any one time outstanding shall include the aggregate number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Underwriting Agreement (Xetal Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in the event case the Company shall at any time after the date hereof issue or sell any shares of Common Stock (other than the issuance or sales referred to in Section 5.5 hereof or the issuance or sale of any shares of Common Stock resulting from the exercise or conversion of any of the Company's securities, including without limitation warrants, options, and contract rights, outstanding on the date hereof), including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) shares of Common Stock issued upon the exercise of any options, rights or warrants to subscribe for shares of Common Stock, or (iii) shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock)treasury, for a consideration per share less than the Market Exercise Price in effect immediately prior to the issuance or sale of such shares, or without consideration, then forthwith upon such issuance or sale, sale the Exercise Price shall (until another such issuance or sale) be reduced to the a price (calculated to the nearest full cent) equal to the quotient derived determined by dividing (iA) an amount equal to the sum of (aX) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately prior to the such issuance or sale of such sharessale, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as Stock provided by for in Section 9.3 5.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation adjustment to be made in accordance with this Section 9.15.1., the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be cash, the amount of the cash portion of the consideration therefor shall be deemed to be the amount of cash have been received by the Company for such shares shall be (ori) the subscription price, if shares of Common Stock are offered by the Company for subscription, or (ii) the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before price (after deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or but before deducting any other expenses incurred in connection therewith), if such securities are sold to underwriters or dealers for public offering without a subscription offering, or (iii) the net amount of cash actually received by the Company for such securities, in any other case.
(b) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of the Company, and otherwise than on the exercise of options, rights or warrants or the conversion or exchange of convertible or exchangeable securities) of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to have been received by the Company shall be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders on the basis of a record of values of similar property or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Companyservices.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without considerationdistribution.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (iib) of this Section 9.15.1.
(e) The number of shares of Common Stock at any one time outstanding shall be deemed to include the aggregate maximum number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, rights or warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Complete Wellness Centers Inc)
Computation of Adjusted Exercise Price. Except as hereinafter -------------------------------------- provided, in case the event the Company company shall at any time after the date hereof issue or sell any shares of Common Stock including shares held in the Company's treasury (other than (i) the issuances or sales referred to in Section 9.7 hereof, (ii) 6.6 hereof or the issuance or sale of any shares of Common Stock issued upon resulting from the exercise or conversion of any optionsof the Company's securities outstanding as of September 30, rights or warrants to subscribe for 1993), including shares of Common Stock, or (iii) shares of Common Stock issued upon held in the direct or indirect conversion or exchange of securities for shares of Common Stock)Company's treasury, for a consideration per share less than the Market Price in effect immediately prior to Company's book value per share determined as of the issuance or sale of such shares, Company's most recent audited Balance Sheet or without consideration, then forthwith upon such issuance or sale, sale the Exercise Price shall (until another such issuance or sale) be reduced to the a price (calculated to the nearest full cent) equal to the quotient derived determined by dividing (iA) an amount equal to the sum of (aX) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately prior to the such issuance or sale of such sharessale, multiplied by the Exercise Price in effect immediately prior to such issuance or sale, and plus (bY) the aggregate of the amount of all consideration, if any, received by the Company upon such issuance or sale, by (iiB) the total number of shares of Common Stock outstanding (including shares deemed to be outstanding pursuant to subparagraph (e) below) immediately after such issuance or sale; provided, however, that in no event shall the Exercise Price be adjusted pursuant to this computation to an amount in excess of the Exercise Price in effect immediately prior to such computation, except in the case of a combination of outstanding shares of Common Stock, as Stock provided by for in Section 9.3 6.3 hereof. For the purposes of this Section 9 the term Exercise Price shall mean the Exercise Price per share of Common Stock set forth in Section 7 hereof, as adjusted from time to time pursuant to the provisions of this Section 9. For the purposes of any computation adjustment to be made in accordance with this Section 9.16.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be cash, the amount of the cash portion of the consideration therefor shall be deemed to be the amount of cash have been received by the Company for such shares shall be (ori) the subscription price, if shares of Common Stock are offered by the Company for subscription, or (ii) the subscription price, or, if either of such securities shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) before price (after deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services, or but before deducting any other expenses incurred in connection therewith), if such securities are sold to underwriters or dealers for public offering without a subscription offering, or (iii) the net amount of cash actually received by the Company for such securities, in any other case.
(b) In case of the issuance or sale (other otherwise than as a dividend or other distribution on any stock of f the Company, and otherwise than on the exercise of options, rights or warrants or the conversion or exchange of convertible or exchangeable securities) of shares of Common Stock (or of other securities deemed hereunder to involve the issuance or sale of shares of Common Stock) for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to have been received by the Company shall be the value of such consideration as determined in good faith by the Board of Directors of the Company and shall include any amounts payable to security holders company on the basis of a record of values of similar property or any affiliates thereof including, without limitation, pursuant to any employment agreement, royalty, consulting agreement, covenant not to compete, earnout or contingent payment right or similar arrangement, agreement or understanding, whether oral or written; all such amounts being valued for the purposes hereof at the aggregate amount payable thereunder, whether such payments are absolute or contingent, and irrespective of the period or uncertainty of payment, the rate of interest, if any, or the contingent nature thereof; provided, however, that if any Holder(s) does not agree with such evaluation, a mutually acceptable independent appraiser shall make such evaluation, the cost of which shall be borne by the Companyservices.
(c) Shares of Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the day following the record date for the determination of stockholders entitled to receive such dividend or other distribution and shall be deemed to have been issued without considerationdistribution.
(d) The reclassification of securities of the Company other than shares of Common Stock into securities including shares of Common Stock shall be deemed to involve the issuance of such shares of Common Stock for a consideration other than cash immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such shares, and the value of the consideration allocable to such shares of Common Stock shall be determined as provided in subsection (iib) of this Section 9.16.1.
(e) The number of shares of Common Stock at any one time outstanding shall be deemed to include the aggregate maximum number of shares issued or issuable (subject to readjustment upon the actual issuance thereof) upon the exercise of options, rights, rights or warrants and upon the conversion or exchange of convertible or exchangeable securities.
Appears in 1 contract
