Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.
Appears in 6 contracts
Samples: Securities Purchase Agreement (Electromedical Technologies, Inc), Warrant Agreement (Home Bistro, Inc. /NV/), Warrant Agreement (Home Bistro, Inc. /NV/)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant Note is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Conversion Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Conversion Price, such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive Issuance), then the Exercise Conversion Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(d)(iv), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(d)(iv), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseConversion Notice.
Appears in 6 contracts
Samples: Convertible Note (Electromedical Technologies, Inc), Convertible Note (Electromedical Technologies, Inc), Convertible Note (Electromedical Technologies, Inc)
Dilutive Issuances. If the Company or any Subsidiary subsidiary thereof, as applicable, at any time while this Warrant Note is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockStock (other than an Exempt Issuance), at an effective price per share less than the then Exercise Conversion Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Conversion Price, such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive Issuance), then the Exercise Conversion Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify Notwithstanding the foregoing, the Holder in writingmay only enforce its rights under this Section 4(d)(iv) after the date that is one hundred eighty (180) calendar days after the Issuance Date, no later than provided, however, that at such time the Trading Day following Holder may enforce its rights to all adjustments hereunder that apply even if the issuance of any Dilutive Issuance occurred prior to the date that is one hundred eighty (180) calendar days after the Issuance Date. “Exempt Issuance” shall mean: (i) Common Stock and Common Stock Equivalents issued pursuant to an Uplist Offering, (ii) Common Stock or Common Stock Equivalents subject issued to this Section 5.3, indicating therein the applicable issuance priceemployees or directors of, or applicable reset priceconsultants, exchange priceadvisors or service providers to, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides or any of its subsidiaries pursuant to a Dilutive Issuance Notice plan, agreement or arrangement approved by the Board of Directors of the Company, (iii) shares Common Stock actually issued upon the exercise of Common Stock Equivalents for which an adjustment has already been made pursuant to this Section 5.34(d)(iv), upon (iv) Common Stock and Common Stock Equivalents issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the occurrence Board of any Dilutive IssuanceDirectors of the Company, after (v) Common Stock and Common Stock Equivalents issued to suppliers or third party service providers in connection with the date provision of such Dilutive Issuance goods or services pursuant to transactions approved by the Holder is entitled to receive a number Board of Warrant Shares based upon Directors of the Base Share Price regardless of whether the Holder accurately refers Company, (vi) Common Stock and Common Stock Equivalents issued as acquisition consideration pursuant to the Base Share Price acquisition of another business by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided that such issuances are approved by the Board of Directors of the Company, and (vii) Common Stock and Common Stock Equivalents issued in connection with sponsored research, collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships approved by the Notice Board of ExerciseDirectors of the Company.
Appears in 3 contracts
Samples: Convertible Note (Home Bistro, Inc. /NV/), Convertible Note (Home Bistro, Inc. /NV/), Convertible Note (Home Bistro, Inc. /NV/)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicableCompany, at any time while prior to the full exercise of this Warrant is outstandingWarrant, shall sell issues, sells or grant grants any option to purchase, or sell sells or grant grants any right to re-pricereprice, or otherwise dispose of disposes of, or issue issues (or announce has sold or issued, as the case may be, or announces any offer, sale, grant or any option to purchase or other disposition) ), any Common Stock or Common Stock Equivalents entitling other securities convertible into, exercisable for, or otherwise entitle any Person person or entity the right to acquire acquire, shares of Common Stock, in each or any case at an effective price per share of less than the then Exercise Price $0.001 per share of Common Stock (such lower price, the “Base Share Exercise Price” and such issuances issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the Common Stock or Common Stock Equivalents other securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less lower than the Exercise Price$0.001 per share of Common Stock, such issuance shall be deemed to have occurred for less than the Exercise Price $0.001 per share of Common Stock on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced reduced, at the option of the Holder, to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be a price equal to the Aggregate Base Exercise Price Prior to such adjustmentPrice. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents other securities are issued. The Company shall notify Notwithstanding the Holder in writingforegoing, no later than adjustment will be made under this Section 3(c) in respect of an Exempt Issuance (as defined below). In the Trading Day following the event of an issuance of securities involving multiple tranches or closings, any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice adjustment pursuant to this Section 5.33(c) shall be calculated as if all such securities were issued at the initial closing. An “Exempt Issuance” shall mean the issuance of (a) shares of Common Stock or other securities to officers or directors of the Company pursuant to any stock or option or similar equity incentive plan duly adopted for such purpose, upon by a majority of the occurrence non-employee members of the Company’s Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose in a manner which is consistent with the Company’s prior business practices; (b) securities issued pursuant to a merger, consolidation, acquisition or similar business combination approved by a majority of the disinterested directors of the Company, provided that any Dilutive Issuancesuch issuance shall only be to a Person (or to the equity holders of a Person) which is, after itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the date business of such Dilutive Issuance the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; (c) securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution approved by a majority of the disinterested directors of the Company; or (d) securities issued with respect to which the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price waives its rights in the Notice of Exercisewriting under this Section 3(c).
Appears in 3 contracts
Samples: Common Stock Purchase Warrant (Sysorex, Inc.), Common Stock Purchase Warrant (Sysorex, Inc.), Common Stock Purchase Warrant (Sysorex, Inc.)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant Note is outstanding, outstanding shall sell or grant issue any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue convertible debt (or announce any offer, sale, grant or any option to purchase or other disposition“Convertible Debt”) any Common Stock or Common Stock Equivalents entitling any Person person to acquire in excess of 100,000 shares of Common Stock, at an effective price per share less than the then Exercise Conversion Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (or if the holder of the any Common Stock or Common Stock Equivalents so equivalents (‘Common Stock Equivalents”) issued in connection therewith shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, Conversion Price (such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive Issuance), then the Exercise Conversion Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Conversion Shares issuable hereunder shall be increased such that the Aggregate Exercise Conversion Price Payable hereunder, after taking into account the decrease in the Exercise Conversion Price, shall be equal to the Aggregate Exercise Conversion Price Prior to such adjustment. Such adjustment shall be made whenever such Convertible Debt, Common Stock or Common Stock Equivalents constituting a Dilutive Issuance are issued. The Company shall notify Notwithstanding the Holder in writingforegoing, no later than the Trading Day following the issuance adjustments shall be made, paid or issued under this Section 3(c) in respect of any an Exempt Issuance. Exempt Issuances shall not include (1) shares of Common Stock and options, warrants or other rights to purchase Common Stock issued or issuable to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock grants, restricted stock purchase agreements, option plans, purchase plans, incentive programs or similar arrangements; (2) shares of Common Stock issued upon the exercise or conversion of Common Stock Equivalents subject outstanding at the issue date of this Note; (3) shares of Common Stock issued or issuable pursuant to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes acquisition of clarification, whether or not another corporation by the Company provides by merger, purchase of substantially all of the assets or other reorganization or to a Dilutive Issuance Notice pursuant to this Section 5.3joint venture agreement, upon provided, that such issuances are unanimously approved by the occurrence Company’s Board of any Dilutive IssuanceDirectors; and (4) shares of Common Stock issued or issuable in connection with sponsored research, after collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships unanimously approved by the date Company’s Board of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseDirectors.
Appears in 3 contracts
Samples: Convertible Promissory Note (CannAwake Corp), Convertible Promissory Note (CannAwake Corp), Convertible Promissory Note (CannAwake Corp)
Dilutive Issuances. If (i) Prior to, and including, the consummation of the Significant Subsequent Financing, if the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockEquivalents, at an effective price per share less than the then Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive IssuanceIssuance at such effective price), then simultaneously with the consummation of each Dilutive Issuance the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate aggregate Exercise Price Payable payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate aggregate Exercise Price Prior prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 3(b) in respect of an Exempt Issuance. The Company shall notify the Holder Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(b), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. If the Company enters into a Variable Rate Transaction, despite the prohibition thereon in the Purchase Agreement, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible conversion or exercise price at which such securities may be converted or exercised.
(ii) Following the consummation of the Significant Subsequent Financing, the Company shall not effect any Dilutive Issuance without the prior written consent of the Holder determined in its sole discretion. As used herein, the term "Dilutive Issuance" shall mean any issuance or sale of any Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock deemed to have been issued by the Company in connection with any Exempt Issuance) for a consideration per share less than a price equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance or sale.
Appears in 2 contracts
Samples: Security Agreement (Boldface Group, Inc.), Securities Agreement (Boldface Group, Inc.)
Dilutive Issuances. If (a) Except as provided in Section 7.2(c), if the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchaseWarrant, or any portion thereof, remains outstanding and unexpired shall issue or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price for a consideration per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such the date of the Dilutive Issuance)such issuance or sale, then the Exercise Price shall be reduced and only reduced to adjusted as of the date of such issuance or sale so that the same shall equal the Base Share Price and price determined by dividing (i) the sum of (A) the number of Warrant Shares shares of Common Stock outstanding immediately prior to such issuance or sale multiplied by the Exercise Price plus (B) the consideration received by the Company upon such issuance and sale by (ii) the total number of shares of Common Stock outstanding after such issuance or sale.
(b) Except as provided in Section 7.2(c), if the Company at any time while this Warrant, or any portion thereof, remains outstanding and unexpired shall issue or sell any rights, options, warrants or securities convertible into Common Stock entitling the holders thereof to purchase Common Stock or to convert such securities into Common Stock at a price per share (determined by dividing (i) the total amount, if any, received or receivable by the Company in consideration of the issuance or sale of such rights, options, warrants or convertible securities plus the total consideration, if any, payable to the Company upon exercise or conversion thereof (the "Total Consideration") by (ii) the number of additional shares of Common Stock issuable hereunder upon exercise or conversion of such securities) less than the then current Exercise Price in effect on the date of such issuance or sale, the Exercise Price shall be increased adjusted as of the date of such issuance or sale so that the Aggregate same shall equal the price determined by dividing (i) the sum of (A) the number of shares of Common Stock outstanding on the date of such issuance or sale multiplied by the Exercise Price Payable hereunder, after taking into account plus (B) the decrease Total Consideration by (ii) the number of shares of Common Stock outstanding on the date of such issuance or sale plus the maximum number of additional shares of Common Stock issuable upon exercise or conversion of such securities.
(c) No adjustment in the Exercise Price, Price shall be equal required in the case of (i) issuances of shares of Common Stock pursuant to the Aggregate Exercise Price Prior to exercise or conversion of options, warrants or shares of convertible securities that are outstanding as of the date of this Warrant in accordance with such adjustment. Such adjustment shall be made whenever such Common Stock securities' current exercise or Common Stock Equivalents are issued. The Company shall notify conversion terms, (ii) the Holder in writing, no later than issuance of employee stock options after the Trading Day following date hereof and the issuance of any shares of Common Stock upon the exercise thereof, (iii) the issuance of shares of Common Stock or options, warrants or other convertible securities in connection with an underwritten public offering or (iv) the issuance of shares of Common Stock Equivalents or options, warrants or other convertible securities in connection with the acquisition of a business or assets by the Company. The number of shares of Common Stock set forth in this Section 7.2(c) are subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of adjustment in accordance with any Dilutive Issuance, after anti-dilution provisions existing on the date hereof under the terms of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exerciseinstruments governing their issuance.
Appears in 2 contracts
Samples: Warrant Agreement (Wire One Technologies Inc), Warrant Agreement (Wire One Technologies Inc)
Dilutive Issuances. If For so long as any Notes or Warrants remain outstanding, the Company shall not, in any manner, enter into or affect any Subsidiary thereofDilutive Issuance (as defined in the Notes) if the effect of such Dilutive Issuance is to cause the Company to be required to issue upon conversion of any Notes or exercise of any Warrant any shares of Common Stock in excess of that number of shares of Common Stock which the Company may issue upon conversion of the Notes and exercise of the Warrants without breaching the Company's obligations under the rules or regulations of the Principal Market. As of any date, other than AboCom Exchange (as defined in the Warrants) and Redemption Issuances (to the extent the Company is in compliance with the applicable provisions governing Redemption Issuances (as defined in the Warrants) as set forth in the Warrants), unless either (i) the Company has obtained the written approval of its stockholders providing for the Company's issuance of all of the Securities as described in the Transaction Documents in accordance with applicable law and the rules and regulations of the Principal Market prior to such date and the Equity Conditions (as defined in the Notes) are satisfied as of such date or (ii) no Notes or Warrants remain outstanding, the Company shall not, in any manner, enter into or affect any Dilutive Issuance if the effect of such Dilutive Issuance would, but for the application of the Conversion Floor Price (as defined in the Notes) or the Exercise Floor Price (as defined in the Warrant), as applicable, at any time while this Warrant is outstanding, shall sell cause either (i) the Conversion Price (as defined in the Notes) to be reduced below the Conversion Floor Price or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other dispositionii) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, as defined in the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”Warrant) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than reduced below the Exercise Floor Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Socket Mobile, Inc.), Securities Purchase Agreement (Socket Mobile, Inc.)
Dilutive Issuances. If the Company or any Subsidiary subsidiary thereof, as applicable, at any time while this Warrant the Note is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockStock for cash in a capital raising transaction (other than an Exempt Issuance), at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, the Holder may only enforce its rights under this Section 5.2 after the date that is one hundred eighty (180) calendar days after the Issue Date, provided, however, that at such time the Holder may enforce its rights to all adjustments hereunder that apply even if the Dilutive Issuance occurred prior to the date that is one hundred eighty (180) calendar days after the Issue Date. “Exempt Issuance” shall mean: (i) Common Stock and Common Stock Equivalents issued pursuant to an Uplist Offering, (ii) Common Stock or Common Stock Equivalents issued to employees or directors of, or consultants, advisors or service providers to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Company, (iii) shares Common Stock actually issued upon the exercise of Common Stock Equivalents for which an adjustment has already been made pursuant to this Section 5.3, (iv) Common Stock and Common Stock Equivalents issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board of Directors of the Company, (v) Common Stock and Common Stock Equivalents issued to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions approved by the Board of Directors of the Company, (vi) Common Stock and Common Stock Equivalents issued as acquisition consideration pursuant to the acquisition of another business by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided that such issuances are approved by the Board of Directors of the Company, and (vii) Common Stock and Common Stock Equivalents issued in connection with sponsored research, collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships approved by the Board of Directors of the Company. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents Dilutive Issuance subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. Notwithstanding the foregoing, if Exercise Price is adjusted to the Uplist Exercise Price as described in this Warrant and (ii) the Note has been repaid in its entirety, then the Holder shall never be entitled to enforce its rights to the adjustments under this Section 5.3 with respect any Dilutive Issuance(s).
Appears in 2 contracts
Samples: Warrant Agreement (Home Bistro, Inc. /NV/), Warrant Agreement (Home Bistro, Inc. /NV/)
Dilutive Issuances. i. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant Note is outstandingoutstanding or the Holder holds any Conversion Shares, shall sell or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockEquivalents, at an effective price per share less than the Conversion Price then Exercise Price in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options Options, units or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less than the Exercise Conversion Price, such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive IssuanceIssuance at such effective price), then simultaneously with the Exercise consummation of each Dilutive Issuance the Conversion Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 5(b) in respect of an Exempt Issuance.
ii. For purposes of determining the adjusted Conversion Price hereunder with respect to the issuance of Options, if the Company in any manner grants or sells any Options and the lowest price per share for which one (1) share of Common Stock is issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Options is less than the Conversion Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Options for such price per share. For purposes of this Section 5(b)(ii), the “lowest price per share for which one (1) share of Common Stock is issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Options” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one (1) share of Common Stock upon the granting or sale of the Options, upon exercise of the Options and upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of such Options less any consideration paid or payable by the Company with respect to such one (1) share of Common Stock upon the granting or sale of such Options, upon exercise of such Options and upon conversion exercise or exchange of any Convertible Securities issuable upon exercise of such Options. No further adjustment of the Conversion Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
iii. The Company shall notify the Holder Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.35(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.35(b), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Conversion Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseConversion. If the Company enters into a Variable Rate Transaction, despite the prohibition in Section 5(h) hereof, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible conversion or exercise price at which such securities may be converted or exercised.
Appears in 2 contracts
Samples: Convertible Security Agreement (Jacksam Corp), Convertible Security Agreement (Jacksam Corp)
Dilutive Issuances. If From the period commencing from the Issue Date and ending on the date that is 12 months from the Issue Date, if the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “"Base Share Price” " and such issuances collectively, a “"Dilutive Issuance”") (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then then, the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate aggregate Exercise Price Payable payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate aggregate Exercise Price Prior prior to such adjustment. In the event the Company or any Subsidiary thereof, as applicable, shall make any Dilutive Issuance following the date that is twelve months from the Issue Date, then the Exercise Price then in effect shall be multiplied by a fraction (i) the numerator of which shall be equal to the sum of (x) the number of shares of outstanding Common Stock immediately prior to the issuance of such shares of Common Stock issued in a Dilutive Issuance plus (y) the number of shares of Common Stock (rounded to the nearest whole share) which the aggregate consideration price per share paid for the total number of such shares of Common Stock issued in a Dilutive Issuance so issued would purchase at a price per share equal to the Exercise Price then in effect and (ii) the denominator of which shall be equal to the number of shares of outstanding Common Stock immediately after the issuance of such shares of Common Stock issued in a Dilutive Issuance. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments shall be made under this Section 3(b) with respect to any Exempt Issuance. The Company shall notify the Holder Holder, in writing, no later than the three (3) Trading Day Days following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice notice, the “"Dilutive Issuance Notice”"). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(b), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.. For purposes of the adjusted Exercise Price under this Section 3(b), the following shall be applicable:
Appears in 2 contracts
Samples: Securities Agreement (Zoom Technologies Inc), Security Agreement (Zoom Technologies Inc)
Dilutive Issuances. If In case the Company or any Subsidiary thereofshall issue, as applicable, at any time while this Warrant is outstanding, shall sell or grant to any option to purchasePerson, whether directly or sell or grant any right to re-price, by assumption in a merger or otherwise dispose of (but other than any Excluded Issuance), (A) rights, warrants, options, exchangeable securities or issue (or announce any offerconvertible securities entitling such Person to subscribe for, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to otherwise acquire shares of Common Stock, Stock (each referred to herein as “Rights”) at an effective a price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder Fair Market Value of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due on the Trading Day immediately prior to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive sale or grant, or (B) shares of Common Stock at an effective a price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date Fair Market Value of the Dilutive Issuance)Common Stock on the Trading Day immediately prior to such issuance, sale or grant, then the Exercise Price of each Class A Warrant in effect on the date of such issuance, sale or grant shall be reduced reduced, concurrently with such issuance, sale or grant, by multiplying such Exercise Price by a fraction, of which (x) the numerator is the number of shares of Common Stock outstanding on the Trading Day immediately prior to such issuance, sale or grant plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription, purchase or acquisition pursuant to such Rights, or so issued, would purchase at the Fair Market Value on the Trading Day immediately prior to the date of such issuance, sale or grant, and only reduced (y) the denominator shall be the number of shares of Common Stock outstanding on the Trading Day immediately prior to equal the Base Share date of such issuance, sale or grant plus the number of shares of Common Stock so offered for subscription, purchase or acquisition pursuant to such Rights, or so issued; provided, however, that in the case of any Rights issued or granted to all holders of Common Stock that expire by their terms not more than 60 days after the date of issue or grant thereof, no adjustment of the Exercise Price of the Class A Warrants shall be made until the expiration or exercise of all such Rights whereupon such adjustment shall be made in the manner provided in this Section 13(e); provided, further, that no adjustment under Section 13 shall be made in connection with a distribution of “poison pill” rights pursuant to a shareholder rights plan so long as the Company shall, in lieu of making any adjustment pursuant to this Section 13, make proper provision so that each holder who exercises a Class A Warrant after the record date for such distribution and prior to the expiration or redemption of all such rights shall be entitled to receive upon such exercise, in addition to the shares of Common Stock issuable upon such exercise, such number of rights that would have been issued on account of such shares of Common Stock if such shares had been outstanding at the time such rights were distributed. If the Exercise Price of a Class A Warrant is adjusted as hereinabove provided, the number of shares of Common Stock issuable upon exercise of such Class A Warrant shall be correspondingly increased by dividing it by the same fraction. If any such Rights are not exercised prior to the expiration thereof, the Exercise Price of a Class A Warrant and the number of shares of Common Stock issuable upon exercise of such Class A Warrant shall be immediately readjusted, effective as of the date such Rights expire, to the Exercise Price and the number of shares of Common Stock issuable upon exercise of such Class A Warrant Shares issuable hereunder shall be increased such that would have been in effect if the Aggregate Exercise Price Payable hereunderunexercised Rights had never been issued, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustmentsold or granted. Such adjustment shall be made successively whenever any such Common Stock event shall occur. For the purposes of this paragraph, the aggregate of the offering price received or Common Stock Equivalents are issuedto be received by the Company shall include the maximum aggregate amount (if any) payable upon exercise or conversion of such Rights. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance value of any Common Stock consideration received or Common Stock Equivalents subject to this Section 5.3be received by the Company, indicating therein if other than cash, shall be reasonably determined by the applicable issuance price, Board in good faith on the basis of such information as it considers appropriate (without regard to any illiquidity or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”minority discounts). For purposes of clarificationdetermining the price at which the Rights or Common Stock in clause (A) or (B) above are issued, whether any customary underwriting discounts and commissions, liquidity discounts (reasonably determined in good faith by the Board), placement fees or not other similar expenses incurred by the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of in connection with such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exerciseissuance shall not be taken into account.
Appears in 2 contracts
Samples: Warrant Agreement (Primus Telecommunications Group Inc), Warrant Agreement (Primus Telecommunications Group Inc)
Dilutive Issuances. If the Company Notwithstanding any other provision of this Warrant or any Subsidiary thereofother documents, as applicable, if at any time while prior to exercise of this Warrant Warrant, the Company issues or sells or is outstanding, shall sell deemed to have issued or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire sold additional shares of Common StockCapital Stock (including, at an without limitation in the event that the nominal or effective price per share of Capital Stock is amended after initial issuance), for a nominal or effective price less than the then effective Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder ), then and in each such case, as of the Common opening of business on the date of such issue or sale, (or if later, the date on which the Exercise Price is determined in accordance with Section 2 hereof) the then existing Exercise Price shall be reduced to the price at which such shares are issued or sold, or deemed to be issued or sold, and the number of Exercise Shares shall be increased proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for the increased number of Warrant Shares shall be the same as the aggregate Exercise Price payable for the Warrant Shares immediately prior to such adjustment.. For purposes of this Section 5.3, the Company will be deemed to have issued or sold additional shares of Capital Stock if it issues any security or Common instrument convertible, exercisable or exchangeable for Capital Stock, or if it promises, undertakes, commits, agrees or enters into any letter of intent to do so (including by reducing the nominal or effective exercise price or nominal or effective conversion price of a security exercisable, convertible or exchangeable for Capital Stock). Notwithstanding the foregoing, (i) no further adjustment of the Exercise Price shall be made as a result of the actual issuance of shares of Capital Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating upon the conversion, exercise or exchange prices of any such instrument or otherwisein satisfaction of any such undertaking, commitment, agreement or due letter of intent, and (ii) no adjustment of the Exercise Price shall be made as a result of the actual issuance of any shares of Common Stock pursuant to warrants, either (X) the exercise of those certain options or rights per share which are issued in connection with such issuance, be entitled to receive purchase up to 35,000 shares of Common Stock at an effective a purchase price of $0.0001 per share which is less than the Exercise Pricethat were outstanding on April 26, such issuance shall be deemed to have occurred for less than the Exercise Price on such date 2004 and held by members of the Dilutive Issuance), then Board of Directors of the Exercise Price shall be reduced and only reduced to equal Company; or (Y) the Base Share Price and exercise of the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseInitial Bridge Warrants.
Appears in 2 contracts
Samples: Warrant Agreement (Northwest Biotherapeutics Inc), Warrant Agreement (Northwest Biotherapeutics Inc)
Dilutive Issuances. If and whenever the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose should issue ------------------ shares of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common its Preferred Stock or Common Stock Equivalents entitling any Person to acquire or other securities exercisable for or convertible into shares of Common Stock, Stock at an effective a price per share less than the Warrant Price, as adjusted for stock splits, combinations, dividends and recapitalizations pursuant to this Section 4, in effect immediately prior to such issuance (other than shares issued or issuable to the officers or directors of or consultants to the Company issued pursuant to a stock option or purchase plan or similar arrangement), then Exercise the Warrant Price shall be adjusted to an amount (calculated to the nearest cent) determined by dividing (1) the sum of (A) the total number of shares of Fully Diluted Common Stock outstanding immediately prior to such lower price, issuance multiplied by the “Base Share Price” then effective Warrant Price and (B) the value of the consideration received by the Company upon such issuances collectively, a “Dilutive Issuance”issuance as determined by the Board of Directors by (2) (if the total number of shares of Fully Diluted Common Stock outstanding immediately after such issuance. The holder of the Warrant shall thereafter be entitled to purchase, at the Warrant Price resulting from such adjustment, the number of shares of Preferred Stock (calculated to the nearest whole share) obtained by multiplying the Warrant Price in effect immediately prior to such adjustment by the number of shares of Fully Diluted Common Stock issuable upon the exercise hereof immediately prior to such adjustment and dividing the product thereof by the Warrant Price resulting from such adjustment. For the purposes of this paragraph (d), the consideration received for securities convertible into or exercisable or exchangeable for the Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating be deemed to include the minimum aggregate amount payable upon conversion, exercise or exchange prices of such securities. In the event the right to convert, exercise or otherwiseexchange such securities expires unexercised, the Warrant Price of shares issuable upon the exercise hereof shall be readjusted accordingly. Notwithstanding the foregoing, there shall be no adjustment, pursuant to this Section, to the Warrant Price, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of shares for which this Warrant Shares issuable hereunder is exercisable, if the holder shall be increased such that the Aggregate Exercise Price Payable hereunderhave been afforded an antidilution adjustment, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following respect of the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3securities, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to the Preferred Stock provisions of the Company's Articles of Incorporation; it being the intent of the parties that the holder not be afforded an antidilution adjustment under both this Section 5.3, upon Warrant and the occurrence Articles of any Dilutive Issuance, after Incorporation in respect of the date same issuance of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercisesecurities.
Appears in 2 contracts
Samples: Warrant Agreement (Paradigm Genetics Inc), Warrant Agreement (Paradigm Genetics Inc)
Dilutive Issuances. If the Company shall issue or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchasesell, or sell is, in accordance with subsections (b)(i) through (viii) below, deemed to have issued or grant any right to re-price, or otherwise dispose of or issue sold (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectivelyeach, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at ), any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive additional shares of Common Stock, other than Excluded Stock at an effective price (the “New Issuance Shares”), without consideration or for a consideration per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price in effect immediately prior to the time of such issue or sale (the lowest price at which such shares of Common Stock are issued or deemed to be issued hereunder is hereinafter referred to as the “New Issuance Price”), then and in each such case (a “Trigger Issuance”) the then-existing Warrant Share Exercise Price, shall be reduced, as of the close of business on such the effective date of the Dilutive Trigger Issuance), then to a price determined in accordance with the immediately succeeding paragraphs. Prior to stockholder approval of the Stockholder Proposals, the Warrant Share Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise higher of (i) the New Issuance Price Prior to such adjustment. Such adjustment shall be made whenever such or (ii) $0.61 (appropriately adjusted for any stock split, reverse stock split, stock dividend or other reclassification or combination of the Common Stock or Common Stock Equivalents are issued. The Company shall notify occurring after the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms date hereof) (such notice the “Dilutive Issuance NoticeFull-Ratchet Floor Price”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, From and after the date of stockholder approval of the Stockholder Proposals, if any, the Warrant Share Exercise Price shall be reduced to the New Issuance Price. In the event that in the time period prior to such stockholder approval a Dilutive Issuance is made and the Holder Warrant Share Exercise Price is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers adjusted to the Base Full-Ratchet Floor Price instead of the New Issuance Price, then immediately following such stockholder approval, the Warrant Share Exercise Price in shall be adjusted to such New Issuance Price if such New Issuance Price is lower than the Notice of Exercisethen current Warrant Share Exercise Price.
Appears in 2 contracts
Samples: Securities Agreement (Matritech Inc/De/), Security Agreement (Matritech Inc/De/)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 5.3 in respect of an Exempt Issuance. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.
Appears in 2 contracts
Samples: Warrant Agreement (Windstream Technologies, Inc.), Warrant Agreement (Lithium Exploration Group, Inc.)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell, enter into an agreement to sell or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any shares of Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockEquivalents, at an effective price per share less than the then Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then simultaneously with the consummation (or, if earlier, the announcement) of each Dilutive Issuance the Exercise Price shall be reduced and only reduced to equal the Base Share Price and Weighted Average Price. Notwithstanding the number of Warrant Shares issuable hereunder foregoing, no adjustments shall be increased such that the Aggregate Exercise Price Payable hereundermade, after taking into account the decrease paid or issued under this Section 3(c) in respect of an Exempt Issuance (as defined in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issuedPurchase Agreement). The Company shall notify the Holder Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(c), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(c), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.. Notwithstanding anything to the contrary contained in this Section 3(c), no adjustments to the Exercise Price will be made for any Dilutive Issuance until after Stockholder Approval has been obtained. For purposes of clarity, with respect to Dilutive Issuances that occur prior to Stockholder Approval, the Conversion Price will be adjusted immediately after Stockholder Approval is obtained to reflect the lowest Weighted Average Price that would have resulted from the Dilutive Issuances if no Stockholder Approval requirement was contained in this Section 3(c)
Appears in 2 contracts
Samples: Security Agreement (Tenon Medical, Inc.), Warrant Agreement (Tenon Medical, Inc.)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicableCompany, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) in any financing greater than $25,000 (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 5.3 in respect to Exempt Issuances. Exempt Issuances means the issuance of (a) Common Stock or options to employees, officers, directors, consultants or collaborators of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities issued pursuant to commercial collaborations, acquisitions or strategic transactions approved by a majority of the disinterested directors or (c), any Dilutive Issuance in any amount less than $25,000. The Company shall notify the Holder in writing, no later than the three Trading Day Days following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. Without limiting any other provision contained herein, when any adjustment is required to be made in the number or kind of shares purchasable upon exercise of this Warrant, or in the Exercise Price, pursuant to the terms hereof, the Company shall promptly notify the Holder of such event and of the number of Warrant Shares or other securities or property thereafter purchasable upon exercise of this Warrant.
Appears in 2 contracts
Samples: Warrant Agreement (Innovus Pharmaceuticals, Inc.), Warrant Agreement (Innovus Pharmaceuticals, Inc.)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “"Base Share Price” " and such issuances collectively, a “"Dilutive Issuance”") (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then then, the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate aggregate Exercise Price Payable payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate aggregate Exercise Price Prior prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments shall be made under this Section 3(b) with respect to any Exempt Issuance. The Company shall notify the Holder Holder, in writing, no later than the three (3) Trading Day Days following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice notice, the “"Dilutive Issuance Notice”"). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(b), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.. For purposes of the adjusted Exercise Price under this Section 3(b), the following shall be applicable:
Appears in 2 contracts
Samples: Security Agreement (Zoom Technologies Inc), Security Agreement (Zoom Technologies Inc)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustmentadjustment (such mechanism to increase the number of Warrant Shares upon a reduction in Exercise Price, the “Share Adjustment Mechanism”); provided, however, that the Share Adjustment Mechanism shall expire and be of no further force or effect and the Company shall have no obligations to issue additional Warrant Shares under the Share Adjustment Mechanism on and as of the three (3) year anniversary of the Issue Date. Such Subject to the foregoing proviso, such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. Notwithstanding the foregoing, this Section shall not apply to, and the following shall not be considered or deemed, Dilutive Issuances: all shares of Common Stock and Common Stock Equivalents actually issued by the Company on or after the date hereof, other than shares of Common Stock or Common Stock Equivalents issued at any time:(A) upon conversion of this Warrant; (B) upon issuance and/or conversion of the Note; (C) pursuant to the exercise of options, warrants or other common stock purchase rights issued (or to be issued) to employees, officers or directors of, or consultants or advisors to, the Company pursuant to any stock purchase plan, stock option plan, equity incentive plan or other plan or arrangement approved by the Board of Directors (or the Compensation Committee thereof) at any time; (D) pursuant to the exercise of options, warrants or any evidence of indebtedness, shares of capital stock (other than Common Stock) or other securities convertible into or exchangeable for Common Stock outstanding as of the date of the issuance of this Note; (E) in connection with the acquisition of all or part of another entity by stock acquisition, merger, consolidation or other reorganization, or by the purchase of all or part of the assets of such other entity (including securities issued to persons formerly employed by such other entity and subsequently hired by the Company and to any brokers or finders in connection therewith); (F) in connection with strategic transactions approved by the Board of Directors (provided such transactions is not primarily for the purpose of raising capital); (G) to bona fide commercial partners, or lessors in connection with credit arrangements, equipment financings or similar transactions approved by the Board of Directors; or (H) in connection with the Company’s acquisition, joint-venture, licensing or business transaction of intellectual property assets from any individuals or entities approved by the Board of Directors.
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Dilutive Issuances. If and whenever on or after the date of issuance of this Warrant, the Company issues or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchasesells, or sell in accordance with this Section 6(d) is deemed to have issued or grant sold, any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockStock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, at an effective price but excluding shares of Common Stock issued or deemed to have been issued or sold by the Company in connection with any Excluded Security (as defined in Section 6(d)(viii)) for a consideration per share less than a price (“Applicable Price”) equal to the then Exercise Price in effect immediately prior to such issue or sale (such lower price, the “Base Share Price” and such issuances collectively, foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the Applicable Price. For purposes of determining the adjusted Exercise Price under this Section 6(d), the following shall be applicable:
(i) If the Company in any manner grants or sells any Options (as defined in Section 6(d)(vii)) and the lowest price per share for which one share of Common Stock is issuable upon the exercise of any such Option or upon conversion or exchange or exercise of any Convertible Securities (a defined in Section 6(d)(vii)) issuable upon exercise of such Option is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes of this Section 6(d)(i) the “lowest price per share for which one share of Common Stock is issuable upon the exercise of any such Option or upon conversion or exchange or exercise of any Convertible Securities issuable upon exercise of such Option” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the holder Company with respect to any one share of Common Stock upon granting or sale of the Option, upon exercise of the Option and upon conversion or exchange or exercise of any Convertible Security issuable upon exercise of such Option. No further adjustment of the Exercise Price shall be made upon the actual issuance of such share of Common Stock or of such Convertible Securities upon the exercise of such Options or upon the actual issuance of such Common Stock Equivalents so upon conversion or exchange or exercise of such Convertible Securities.
(ii) If the Company in any manner issues or sells any Convertible Securities and the lowest price per share for which one share of Common Stock is issuable upon such conversion or exchange or exercise thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance of sale of such Convertible Securities for such price per share. For the purposes of this Section 6(d) (ii)), the “lowest price per share for which one share of Common Stock is issuable upon such conversion or exchange or exercise” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the issuance or sale of the Convertible Security and upon the conversion or exchange or exercise of such Convertible Security. No further adjustment of the Exercise Price shall be made upon the actual issuance of such share of Common Stock upon conversion or exchange or exercise of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of the Exercise Price had been or are to be made pursuant to other provisions of this Section 6(d), no further adjustment of the Exercise Price shall be made by reason of such issue or sale.
(iii) If the purchase price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exchange or exercise of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exchangeable or exercisable for Common Stock changes at any time, whether by operation the Exercise Price in effect at the time of such change shall be adjusted to the Exercise Price which would have been in effect at such time had such Options or Convertible Securities provided for such changed purchase price adjustmentsprice, reset provisionsadditional consideration or changed conversion rate, floating conversionas the case may be, exercise at the time initially granted, issued or sold. For purposes of this Section 6(d) (iii), if the terms of any Option or Convertible Security that was outstanding as of the date of issuance of this Warrant are changed in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the Common Stock deemed issuable upon exercise, conversion or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance thereof shall be deemed to have occurred been issued as of the date of such change.
(iv) In case any Option is issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction in which no specific consideration is allocated to such Options by the parties thereto, the Options will be deemed to have been issued for less a consideration of $0.01. If any Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the gross amount received by the Company therefor. If any Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company will be the fair value of such consideration, except where such consideration consists of securities, in which case the amount of consideration received by the Company will be the Closing Price of such securities on the date of receipt. If any Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or securities will be determined in good faith by the Board of Directors of the Company within five (5) days after the occurrence of an event requiring valuation. If the Holder disagrees with the determination of the Board of Directors and gives written notice of such disagreement to the Company within ten (10) days after the occurrence of an event requiring valuation (“Valuation Event”), the fair value of such consideration will be determined within five (5) business days after the tenth day following the Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be deemed binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.
(v) If the Company takes a record of the holders of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issue or sale of the Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(vi) In the event that an event would result in an adjustment to the Exercise Price on such date of the Dilutive Issuanceunder Sections 6(a), then the Exercise Price shall be reduced 6(b) or 6(c) and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such also under this Section 6(d) an adjustment shall be made whenever under only such Common Stock or Common Stock Equivalents are issued. The Company shall notify applicable paragraph that results in the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms lowest Exercise Price.
(such notice the “Dilutive Issuance Notice”). vii) For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.36(d), upon the occurrence of any Dilutive Issuance, after following capitalized terms shall have the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.following respective meanings when used herein:
Appears in 1 contract
Dilutive Issuances. If the Company shall issue or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchasesell, or sell is, in accordance with subsections (b)(i) through (viii) below, deemed to have issued or grant any right to re-price, or otherwise dispose of or issue sold (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectivelyeach, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at ), any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive additional shares of Common Stock, other than Excluded Stock at an effective price (the “New Issuance Shares”), without consideration or for a consideration per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price in effect immediately prior to the time of such issue or sale (the lowest price at which such shares of Common Stock are issued or deemed to be issued hereunder is hereinafter referred to as the “New Issuance Price”), then and in each such case (a “Trigger Issuance”) the then-existing Warrant Share Exercise Price, shall be reduced, as of the close of business on such the effective date of the Dilutive Trigger Issuance), then to a price determined in accordance with the immediately succeeding paragraphs. Prior to stockholder approval of the Stockholder Proposals, the Warrant Share Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise higher of (i) the New Issuance Price Prior to such adjustment. Such adjustment shall be made whenever such or (ii) $0.63 (appropriately adjusted for any stock split, reverse stock split, stock dividend or other reclassification or combination of the Common Stock or Common Stock Equivalents are issued. The Company shall notify occurring after the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms date hereof) (such notice the “Dilutive Issuance NoticeFull-Ratchet Floor Price”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, From and after the date of stockholder approval of the Stockholder Proposals, if any, the Warrant Share Exercise Price shall be reduced to the New Issuance Price. In the event that in the time period prior to such stockholder approval a Dilutive Issuance is made and the Holder Warrant Share Exercise Price is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers adjusted to the Base Full-Ratchet Floor Price instead of the New Issuance Price, then immediately following such stockholder approval, the Warrant Share Exercise Price in shall be adjusted to such New Issuance Price if such New Issuance Price is lower than the Notice of Exercisethen current Warrant Share Exercise Price.
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Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchasesell, or sell or grant any right to re-pricegrant, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockEquivalents, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 5.3 in respect of an Exempt Issuance. For purposes hereof, an “Exempt Issuance” includes issuances to employees or independent contractors pursuant to a compensation plan, or securities issued for acquisitions. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.
Appears in 1 contract
Samples: Warrant Agreement (SearchCore, Inc.)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell sell, enter into an agreement to sell, or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockEquivalents, at an effective price per share less than the then Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive IssuanceIssuance at such effective price), then simultaneously with the consummation (or, if earlier, the announcement) of each Dilutive Issuance the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate aggregate Exercise Price Payable payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate aggregate Exercise Price Prior prior to such adjustment. Such adjustment Notwithstanding the foregoing, no adjustments shall be made whenever such Common Stock made, paid or Common Stock Equivalents are issuedissued under this Section 3(b) in respect of an Exempt Issuance. The Company shall notify the Holder Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(b), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. If the Company enters into a Variable Rate Transaction, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible price, conversion price or exercise price at which such securities may be issued, converted or exercised.
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Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant Note is outstanding, outstanding shall sell or grant issue any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue convertible debt (or announce any offer, sale, grant or any option to purchase or other disposition“Convertible Debt”) any Common Stock or Common Stock Equivalents entitling any Person person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Conversion Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (or if the holder of the any Common Stock or Common Stock Equivalents so equivalents (‘Common Stock Equivalents”) issued in connection therewith shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, Conversion Price (such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive Issuance), then the Exercise Conversion Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Conversion Shares issuable hereunder shall be increased such that the Aggregate Exercise Conversion Price Payable hereunder, after taking into account the decrease in the Exercise Conversion Price, shall be equal to the Aggregate Exercise Conversion Price Prior prior to such adjustment. Such adjustment shall be made whenever such Convertible Debt or Common Stock Equivalents constituting a Dilutive Issuance are issued. If any of such Convertible Debt or Common Stock Equivalents are issued. The Company cancelled or expire prior to conversion or exercise, the Conversion Price shall notify be readjusted to the Holder in writing, no later than the Trading Day following the issuance of any Common Stock amount calculated as if such Convertible Debt or Common Stock Equivalents subject to had not been issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 5.33(c) in respect of an Exempt Issuance. Exempt Issuances shall not include (1) shares of Common Stock and options, indicating therein the applicable issuance pricewarrants or other rights to purchase Common Stock issued or issuable to employees, officers or directors of, or applicable reset priceconsultants or advisors to, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice or any subsidiary pursuant to this Section 5.3stock grants, restricted stock purchase agreements, option plans, purchase plans, incentive programs or similar arrangements; (2) shares of Common Stock issued upon the occurrence exercise or conversion of any Dilutive Issuance, after Common Stock Equivalents outstanding at the issue date of such Dilutive Issuance the Holder is entitled to receive a number this Note; (3) shares of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers Common Stock issued or issuable pursuant to the Base Share Price acquisition of another corporation by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided, that such issuances are unanimously approved by the Company’s Board of Directors; and (4) shares of Common Stock issued or issuable in connection with sponsored research, collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships unanimously approved by the Notice Company’s Board of ExerciseDirectors.
Appears in 1 contract
Samples: Convertible Promissory Note (Delta International Oil & Gas Inc.)
Dilutive Issuances. If In case the Company or any Subsidiary thereofshall issue, as applicable, at any time while this Warrant is outstanding, shall sell or grant to any option to purchasePerson, whether directly or sell or grant any right to re-price, by assumption in a merger or otherwise dispose of (but other than any Excluded Issuance), (A) rights, warrants, options, exchangeable securities or issue (or announce any offerconvertible securities entitling such Person to subscribe for, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to otherwise acquire shares of Common Stock, Stock (each referred to herein as “Rights”) at an effective a price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder Fair Market Value of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due on the Trading Day immediately prior to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive sale or grant, or (B) shares of Common Stock at an effective a price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date Fair Market Value of the Dilutive Issuance)Common Stock on the Trading Day immediately prior to such issuance, sale or grant, then the Exercise Price of each Class B Warrant in effect on the date of such issuance, sale or grant shall be reduced reduced, concurrently with such issuance, sale or grant, by multiplying such Exercise Price by a fraction, of which (x) the numerator is the number of shares of Common Stock outstanding on the Trading Day immediately prior to such issuance, sale or grant plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription, purchase or acquisition pursuant to such Rights, or so issued, would purchase at the Fair Market Value on the Trading Day immediately prior to the date of such issuance, sale or grant, and only reduced (y) the denominator shall be the number of shares of Common Stock outstanding on the Trading Day immediately prior to equal the Base Share date of such issuance, sale or grant plus the number of shares of Common Stock so offered for subscription, purchase or acquisition pursuant to such Rights, or so issued; provided, however, that in the case of any Rights issued or granted to all holders of Common Stock that expire by their terms not more than 60 days after the date of issue or grant thereof, no adjustment of the Exercise Price of the Class B Warrants shall be made until the expiration or exercise of all such Rights whereupon such adjustment shall be made in the manner provided in this Section 13(e); provided, further, that no adjustment under Section 13 shall be made in connection with a distribution of “poison pill” rights pursuant to a shareholder rights plan so long as the Company shall, in lieu of making any adjustment pursuant to this Section 13, make proper provision so that each holder who exercises a Class B Warrant after the record date for such distribution and prior to the expiration or redemption of all such rights shall be entitled to receive upon such exercise, in addition to the shares of Common Stock issuable upon such exercise, such number of rights that would have been issued on account of such shares of Common Stock if such shares had been outstanding at the time such rights were distributed. If the Exercise Price of a Class B Warrant is adjusted as hereinabove provided, the number of shares of Common Stock issuable upon exercise of such Class B Warrant shall be correspondingly increased by dividing it by the same fraction. If any such Rights are not exercised prior to the expiration thereof, the Exercise Price of a Class B Warrant and the number of shares of Common Stock issuable upon exercise of such Class B Warrant shall be immediately readjusted, effective as of the date such Rights expire, to the Exercise Price and the number of shares of Common Stock issuable upon exercise of such Class B Warrant Shares issuable hereunder shall be increased such that would have been in effect if the Aggregate Exercise Price Payable hereunderunexercised Rights had never been issued, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustmentsold or granted. Such adjustment shall be made successively whenever any such Common Stock event shall occur. For the purposes of this paragraph, the aggregate of the offering price received or Common Stock Equivalents are issuedto be received by the Company shall include the maximum aggregate amount (if any) payable upon exercise or conversion of such Rights. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance value of any Common Stock consideration received or Common Stock Equivalents subject to this Section 5.3be received by the Company, indicating therein if other than cash, shall be reasonably determined by the applicable issuance price, Board in good faith on the basis of such information as it considers appropriate (without regard to any illiquidity or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”minority discounts). For purposes of clarificationdetermining the price at which the Rights or Common Stock in clause (A) or (B) above are issued, whether any customary underwriting discounts and commissions, liquidity discounts (reasonably determined in good faith by the Board), placement fees or not other similar expenses incurred by the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of in connection with such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exerciseissuance shall not be taken into account.
Appears in 1 contract
Samples: Warrant Agreement (Primus Telecommunications Group Inc)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, after the Issuance Date the Company shall sell or grant any option to purchase, issue or sell or grant any right to re-price, or otherwise dispose shares of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Convertible Securities (other than (i) securities issued or issuable in Exempt Issuances or (ii) shares of Common Stock Equivalents entitling any Person to acquire issued as a result of a dividend or other distribution on the Common Stock payable in Common Stock or (iii) a subdivision of outstanding shares of Common Stock), at an effective price without consideration or for a consideration per share less than the then Exercise Price (such lower price$0.01, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal a price (calculated to the Base Share nearest cent) (i) determined in accordance with the following formula: New Exercise Price and = P1 Q1 + P2 Q2 Q1 + Q2 where: P1= Applicable Exercise Price in effect immediately prior to such new issue or sale. Q1= Number of shares of Common Stock outstanding plus the number of Warrant Shares shares of Common Stock issuable hereunder shall be increased upon conversion or exercise of Convertible Securities outstanding immediately prior to such that new issue or sale. P2= 100% of the Aggregate Exercise Price Payable hereunderweighted average price per share of Common Stock received or deemed by the Company upon such new issue or sale. Q2= Number of shares of Common Stock issued or sold, after taking into account the decrease or deemed to have been issued, in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”)transaction. For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.34.3, upon the occurrence sale or issuance of any Dilutive IssuanceConvertible Securities, after the date maximum number of shares of Common Stock issuable upon the exercise, conversion or exchange of such Dilutive Issuance Convertible Securities (as set forth in the Holder is entitled instrument relating thereto without regard to receive any provisions contained therein for a number subsequent adjustment of Warrant Shares based such number) shall be deemed to be issued as of the time of such issue or sale and the consideration deemed received for such shares of Common Stock shall be the consideration actually received by the Company for the issue of such Convertible Securities plus the minimum additional consideration to be received by the Company upon the Base Share Price regardless full exercise, conversion or exchange of whether such Convertible Securities. Insofar as any consideration received, or to be received, by the Holder accurately refers to Company consists of property other than cash, such consideration shall be computed at the Base Share Price fair value thereof at the time of such issue or sale, as determined in good faith by the Notice of ExerciseBoard.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Energy Focus, Inc/De)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, after the Issuance Date the Company shall sell or grant any option to purchase, issue or sell or grant any right to re-price, or otherwise dispose shares of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Convertible Securities (other than (i) securities issued or issuable in Excluded Issuances or (ii) shares of Common Stock Equivalents entitling any Person to acquire issued as a result of a dividend or other distribution on the Common Stock payable in Common Stock or (iii) a subdivision of outstanding shares of Common Stock), at an effective price without consideration or for a consideration per share less than the then Exercise Price (such lower price$0.86, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal a price (calculated to the Base Share nearest cent) (i) determined in accordance with the following formula: where: P1 = Applicable Exercise Price and in effect immediately prior to such new issue or sale. Q1 = Number of shares of Common Stock outstanding plus the number of Warrant Shares shares of Common Stock issuable hereunder shall be increased upon conversion or exercise of Convertible Securities outstanding immediately prior to such that new issue or sale. P2 = 100% of the Aggregate Exercise Price Payable hereunderweighted average price per share of Common Stock received or deemed by the Company upon such new issue or sale. Q2 = Number of shares of Common Stock issued or sold, after taking into account the decrease or deemed to have been issued, in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”)transaction. For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.34.3, upon the occurrence sale or issuance of any Dilutive IssuanceConvertible Securities, after the date maximum number of shares of Common Stock issuable upon the exercise, conversion or exchange of such Dilutive Issuance Convertible Securities (as set forth in the Holder is entitled instrument relating thereto without regard to receive any provisions contained therein for a number subsequent adjustment of Warrant Shares based such number) shall be deemed to be issued as of the time of such issue or sale and the consideration deemed received for such shares of Common Stock shall be the consideration actually received by the Company for the issue of such Convertible Securities plus the minimum additional consideration to be received by the Company upon the Base Share Price regardless full exercise, conversion or exchange of whether such Convertible Securities. Insofar as any consideration received, or to be received, by the Holder accurately refers to Company consists of property other than cash, such consideration shall be computed at the Base Share Price fair value thereof at the time of such issue or sale, as determined in good faith by the Notice of ExerciseBoard.
Appears in 1 contract
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicableCompany, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) in any financing greater than $25,000 (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 5.3 in respect to Exempt Issuances. Exempt Issuances means the issuance of (a) Common Stock or options to employees, officers, directors, consultants or collaborators of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities issued pursuant to commercial collaborations, acquisitions or strategic transactions approved by a majority of the disinterested directors whose primary purpose is not to raise capital or (c), any Dilutive Issuance in any amount less than $25,000. The Company shall notify the Holder in writing, no later than the three Trading Day Days following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. Without limiting any other provision contained herein, when any adjustment is required to be made in the number or kind of shares purchasable upon exercise of this Warrant, or in the Exercise Price, pursuant to the terms hereof, the Company shall promptly notify the Holder of such event and of the number of Warrant Shares or other securities or property thereafter purchasable upon exercise of this Warrant.
Appears in 1 contract
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant Note is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Conversion Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Conversion Price, such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive Issuance), then the Exercise Conversion Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(d)(iv), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(d)(iv), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice Conversion Notice. Notwithstanding the foregoing, this Section shall not apply to, and the following shall not be considered or deemed, Dilutive Issuances: all shares of ExerciseCommon Stock and Common Stock Equivalents actually issued by the Company on or after the date hereof, other than shares of Common Stock or Common Stock Equivalents issued at any time:(A) upon conversion of this Note; (B) upon issuance and/or conversion of the warrant issued to the Holder on the date hereof; (C) pursuant to the exercise of options, warrants or other common stock purchase rights issued (or to be issued) to employees, officers or directors of, or consultants or advisors to, the Company pursuant to any stock purchase plan, stock option plan, equity incentive plan or other plan or arrangement approved by the Board of Directors (or the Compensation Committee thereof) at any time; (D) pursuant to the exercise of options, warrants or any evidence of indebtedness, shares of capital stock (other than Common Stock) or other securities convertible into or exchangeable for Common Stock outstanding as of the date of the issuance of this Note; (E) in connection with the acquisition of all or part of another entity by stock acquisition, merger, consolidation or other reorganization, or by the purchase of all or part of the assets of such other entity (including securities issued to persons formerly employed by such other entity and subsequently hired by the Company and to any brokers or finders in connection therewith); (F) in connection with strategic transactions approved by the Board of Directors (provided such transactions is not primarily for the purpose of raising capital); (G) to bona fide commercial partners, or lessors in connection with credit arrangements, equipment financings or similar transactions approved by the Board of Directors; or (H) in connection with the Company’s acquisition, joint-venture, licensing or business transaction of intellectual property assets from any individuals or entities approved by the Board of Directors.
Appears in 1 contract
Dilutive Issuances. If the Company or any Subsidiary thereofSubsidiary, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockEquivalents, at an effective price per share less than the then Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive IssuanceIssuance at such effective price), then simultaneously with the consummation (or, if earlier, the announcement) of each Dilutive Issuance, the Exercise Price shall be reduced and only reduced to equal the Base Share Price Price, and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate aggregate Exercise Price Payable payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate aggregate Exercise Price Prior prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issuedissued or, if earlier, when such issuance is announced. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 3(e) in respect of an Exempt Issuance or an issuance of shares of Common Stock in a registered “at-the-market” offering. The Company shall notify the Holder Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(e), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(e), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. Notwithstanding anything contained in this Section 3(e) to the contrary, no adjustment pursuant to this Section shall result in the exercise price being reduced to less than $0.855.
Appears in 1 contract
Dilutive Issuances. If the Company or any Subsidiary subsidiary thereof, as applicableapplicable with respect to Common Stock Equivalents (as defined below), at any time while this Warrant is Notes are outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose issue shares of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or rights, warrants, options or other securities or debt that are convertible into or exchangeable for shares of Common Stock Equivalents ("Common Stock Equivalents") entitling any Person person to acquire shares of Common Stock, Stock at an effective a price per share less than the then Exercise Conversion Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents Equivalent so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective a price per share which is less than the Exercise Conversion Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date Conversion Price), then, at the sole option of the Dilutive Issuance)Holder, then either (1) the Exercise Conversion Price shall be reduced and only reduced to equal multiplied by a fraction, the Base Share Price and numerator of which shall be the number of Warrant Shares issuable hereunder shares of Common Stock outstanding immediately prior to the issuance of such shares of Common Stock or such Common Stock Equivalents plus the number of shares of Common Stock which the offering price for such shares of Common Stock or Common Stock Equivalents would purchase at the Conversion Price, and the denominator of which shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account sum of the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior number of shares of Common Stock outstanding immediately prior to such adjustmentissuance plus the number of shares of Common Stock so issued or issuable, or (2) the Company will use 50% of the proceeds from such issuance or sale to prepay principal amount under this Note (pro-rata with the secured convertible notes issued to other Subscribers in connection with the Subscription Agreement) in accordance with Section 3(g). Such adjustment shall be made whenever such shares of Common Stock or Common Stock Equivalents are issued. The Company shall notify No adjustment will be made under this paragraph as a result of the Holder in writing, no later than the Trading Day following the grant or issuance of any shares of Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon any duly authorized employee stock option plan of the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseCompany.
Appears in 1 contract
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, after the Issuance Date the Company shall sell or grant any option to purchase, issue or sell or grant any right to re-price, or otherwise dispose shares of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Convertible Securities (other than (i) securities issued or issuable in Exempt Issuances or (ii) shares of Common Stock Equivalents entitling any Person to acquire issued as a result of a dividend or other distribution on the Common Stock payable in Common Stock or (iii) a subdivision of outstanding shares of Common Stock), at an effective price without consideration or for a consideration per share less than the then Exercise Price (such lower price$0.01, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal a price (calculated to the Base Share nearest cent) (i) determined in accordance with the following formula: New Exercise Price and = P1 Q1 + P2 Q2 Q1 + Q2 where: P1 = Applicable Exercise Price in effect immediately prior to such new issue or sale. Q1 = Number of shares of Common Stock outstanding plus the number of Warrant Shares shares of Common Stock issuable hereunder shall be increased upon conversion or exercise of Convertible Securities outstanding immediately prior to such that new issue or sale. P2 = 100% of the Aggregate Exercise Price Payable hereunderweighted average price per share of Common Stock received or deemed by the Company upon such new issue or sale. Q2 = Number of shares of Common Stock issued or sold, after taking into account the decrease or deemed to have been issued, in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”)transaction. For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.34.3, upon the occurrence sale or issuance of any Dilutive IssuanceConvertible Securities, after the date maximum number of shares of Common Stock issuable upon the exercise, conversion or exchange of such Dilutive Issuance Convertible Securities (as set forth in the Holder is entitled instrument relating thereto without regard to receive any provisions contained therein for a number subsequent adjustment of Warrant Shares based such number) shall be deemed to be issued as of the time of such issue or sale and the consideration deemed received for such shares of Common Stock shall be the consideration actually received by the Company for the issue of such Convertible Securities plus the minimum additional consideration to be received by the Company upon the Base Share Price regardless full exercise, conversion or exchange of whether such Convertible Securities. Insofar as any consideration received, or to be received, by the Holder accurately refers to Company consists of property other than cash, such consideration shall be computed at the Base Share Price fair value thereof at the time of such issue or sale, as determined in good faith by the Notice of ExerciseBoard.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Energy Focus, Inc/De)
Dilutive Issuances. If the Company or any Subsidiary thereofSubsidiary, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockEquivalents, at an effective price per share less than the then Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive IssuanceIssuance at such effective price), then simultaneously with the consummation (or, if earlier, the announcement) of each Dilutive Issuance, the Exercise Price shall be reduced and only reduced to equal the Base Share Price Price, and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate aggregate Exercise Price Payable payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate aggregate Exercise Price Prior prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issuedissued or, if earlier, when such issuance is announced. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 3(e) in respect of an Exempt Issuance or an issuance of shares of Common Stock in a registered “at-the-market” offering. The Company shall notify the Holder Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(e), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(e), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. Notwithstanding anything contained in this Section 3(e) to the contrary, no adjustment pursuant to this Section shall result in the exercise price being reduced to less than $0.8552.
Appears in 1 contract
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicableCompany, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockEquivalents, at an effective price per share that is less than the then Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”), then simultaneously with the consummation of each Dilutive Issuance, the Exercise Price for each Warrant Share payable upon exercise of this Warrant shall be adjusted (without rounding) (if so that it shall equal the holder product of the Common Stock or Common Stock Equivalents so issued Exercise Price immediately prior to such adjustment multiplied by a fraction, the numerator of which shall at any time, whether by operation be the sum of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive the (i) shares of Common Stock at an outstanding prior to the Dilutive Issuance and (ii) the number of shares of Common Stock equivalent to the total Consideration to be paid in the Dilutive Issuance divided by the Exercise Price and the denominator of which shall be the sum of the (i) shares of Common Stock outstanding and (ii) the number of shares of Common Stock issuable in the Dilutive Issuance. Such adjustment shall become effective immediately after the effective date of such Dilutive Issuance, retroactive to the record date, if any, for such event. For the avoidance of doubt, the adjustment contemplated by this section can be expressed by formula as follows: Ub = shares underlying this Warrant before the adjustment Ua = shares underlying this Warrant after the adjustment Pb = exercise price per share which is less than before the Exercise Price, such issuance shall be deemed to have occurred for less than adjustment Pa = exercise price per share after the Exercise Price on such date of adjustment Ob = shares outstanding before the Dilutive Issuance), then transaction in question Oa = shares outstanding after the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease transaction in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. question Ua = Ub x Oa / Ob Pa = Pb x Ob / Oa Such adjustment shall be made whenever such Common Stock or Dilutive Issuance shall occur, and shall become effective retroactive to immediately after the record date of such Dilutive Issuance. If at the end of the period during which Common Stock Equivalents are could be issued or exercised, not all of such Common Stock Equivalents have been issued, exercised or exchanged, the adjusted Exercise Price of this Warrant shall be immediately readjusted to what it would have been if the adjustments made in the foregoing formula had been based on the number of shares actually issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 3(b) in respect of an Exempt Issuance. The Company shall notify the Holder Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms Exercise Price (such notice notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(b), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share adjusted Exercise Price regardless of whether the Holder accurately refers to the Base Share adjusted Exercise Price in the Notice of Exercise.
Appears in 1 contract
Dilutive Issuances. If and whenever on or after the Amendment No. 3 Date the Company issues or sells, or in accordance with this Section 3(e), is deemed to have issued or sold, any shares of Common Stock (excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded Security) for a consideration per share less than the Conversion Price in effect immediately prior to such issue or sale (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced effective concurrently with such Dilutive Issuance to an amount equal to the consideration per share received by the Company in the Dilutive Issuance. For purposes of determining the adjusted Conversion Price under this Section 3(e)(ii), the following shall be applicable:
a. If the Company or any Subsidiary thereof, as applicableshall, at any time while or from time to time after the Amendment No. 3 Date, in any manner grant or sell (whether directly or by assumption in a merger or otherwise) any Options or Convertible Securities, whether or not such Options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such Options or upon the conversion or exchange of such Convertible Securities is less than the Conversion Price in effect immediately prior to the time of the granting or sale of such Options or Convertible Securities, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of Convertible Securities shall be deemed to have been issued as of the date of granting or sale of such Options or Convertible Securities (and thereafter shall be deemed to be outstanding for purposes of adjusting the Conversion Price under this Warrant is outstandingSection), at a price per share equal to the quotient obtained by dividing (A) the sum (which sum shall sell constitute the applicable consideration received for purposes of this Section 3(e)(ii)) of (x) the total amount, if any, received or grant receivable by the Company as consideration for the granting or sale of all such Options or Convertible Securities, plus (y) the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options or upon the conversion or exchange of all such Convertible Securities, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of all such Options or upon the conversion or exchange of all such Convertible Securities. Except as otherwise provided in Section 3(e)(ii)(b) below, no further adjustment of the Conversion Price shall be made upon the actual issuance of Common Stock upon exercise of such Options or conversion or exchange of such Convertible Securities.
b. If the purchase price provided for in any option to purchaseOptions, the additional consideration, if any, payable upon the issue, conversion, exchange or exercise of any Convertible Securities, or sell the rate at which any Convertible Securities are convertible into or grant exchangeable or exercisable for shares of Common Stock changes at any right time, the Conversion Price in effect at the time of such change shall be adjusted to re-the Conversion Price which would have been in effect at such time had such Options or Convertible Securities provided for such changed purchase price, additional consideration or otherwise dispose changed conversion rate, as the case may be, at the time initially granted, issued or sold.
c. In case any Option is issued in connection with the issue or sale of or issue (or announce other securities of the Company, together comprising one integrated transaction in which no specific consideration is allocated to such Options by the parties thereto, the Options will be deemed to have been issued for a consideration of $0.001. If any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower priceOptions or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if consideration received therefor will be deemed to be the holder of net amount received by the Common Stock or Common Stock Equivalents so issued shall at Company therefor. If any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date amount of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later consideration other than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not cash received by the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon will be the occurrence of any Dilutive Issuance, after the date fair value of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exerciseconsideration.
Appears in 1 contract
Samples: Convertible Promissory Note (ThermoGenesis Holdings, Inc.)
Dilutive Issuances. If and whenever on or after the Issuance Date the Company issues or sells, or in accordance with this Section 3(e), is deemed to have issued or sold, any shares of Common Stock (excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded Security) for a consideration per share less than the Conversion Price in effect immediately prior to such issue or sale (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced effective concurrently with such Dilutive Issuance to an amount equal to the consideration per share received by the Company in the Dilutive Issuance. For purposes of determining the adjusted Conversion Price under this Section 3(e)(ii), the following shall be applicable:
a. If the Company or any Subsidiary thereof, as applicableshall, at any time while or from time to time after the Issuance Date, in any manner grant or sell (whether directly or by assumption in a merger or otherwise) any Options or Convertible Securities, whether or not such Options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such Options or upon the conversion or exchange of such Convertible Securities is less than the Conversion Price in effect immediately prior to the time of the granting or sale of such Options or Convertible Securities, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of Convertible Securities shall be deemed to have been issued as of the date of granting or sale of such Options or Convertible Securities (and thereafter shall be deemed to be outstanding for purposes of adjusting the Conversion Price under this Warrant is outstandingSection), at a price per share equal to the quotient obtained by dividing (A) the sum (which sum shall sell constitute the applicable consideration received for purposes of this Section 3(e)(ii)) of (x) the total amount, if any, received or grant receivable by the Company as consideration for the granting or sale of all such Options or Convertible Securities, plus (y) the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options or upon the conversion or exchange of all such Convertible Securities, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of all such Options or upon the conversion or exchange of all such Convertible Securities. Except as otherwise provided in Section 3(e)(ii)(b) below, no further adjustment of the Conversion Price shall be made upon the actual issuance of Common Stock upon exercise of such Options or conversion or exchange of such Convertible Securities.
b. If the purchase price provided for in any option to purchaseOptions, the additional consideration, if any, payable upon the issue, conversion, exchange or exercise of any Convertible Securities, or sell the rate at which any Convertible Securities are convertible into or grant exchangeable or exercisable for shares of Common Stock changes at any right time, the Conversion Price in effect at the time of such change shall be adjusted to re-the Conversion Price which would have been in effect at such time had such Options or Convertible Securities provided for such changed purchase price, additional consideration or otherwise dispose changed conversion rate, as the case may be, at the time initially granted, issued or sold.
c. In case any Option is issued in connection with the issue or sale of or issue (or announce other securities of the Company, together comprising one integrated transaction in which no specific consideration is allocated to such Options by the parties thereto, the Options will be deemed to have been issued for a consideration of $0.001. If any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower priceOptions or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if consideration received therefor will be deemed to be the holder of net amount received by the Common Stock or Common Stock Equivalents so issued shall at Company therefor. If any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date amount of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later consideration other than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not cash received by the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon will be the occurrence of any Dilutive Issuance, after the date fair value of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exerciseconsideration.
Appears in 1 contract
Samples: Convertible Promissory Note (ThermoGenesis Holdings, Inc.)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicableCompany, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 5.3 in respect to Exempt Issuances. For purposes of this Section, “Exempt Issuances” means the issuance of (a) shares of Common Stock or options to employees, officers, directors, consultants or collaborators of the Company pursuant to any stock or option plan duly adopted for such purpose by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that the terms of such securities are not amended or changed after the date hereof, (c) securities issued pursuant to commercial collaborations, acquisitions or strategic transactions approved by a majority of the disinterested directors whose primary purpose is not to raise capital (d) securities issued in connection with any bona fide commercial loan or debt transaction with third persons, provided that the primary purpose of such transaction is not to raise equity capital and is approved by the Company’s Board of Directors in good faith, (e) any Permitted Subordinated Indebtedness or (f) any Dilutive Issuance in any amount less than $25,000. The Company shall notify the Holder in writing, no later than the three Trading Day Days following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. Without limiting any other provision contained herein, when any adjustment is required to be made in the number or kind of shares purchasable upon exercise of this Warrant, or in the Exercise Price, pursuant to the terms hereof, the Company shall promptly notify the Holder of such event and of the number of Warrant Shares or other securities or property thereafter purchasable upon exercise of this Warrant.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Brekford Corp.)
Dilutive Issuances. (i) If the Company or any Subsidiary thereof, as applicableCompany, at any time while this Warrant is outstandingor from time to time after June 22, 1999, shall sell issue any Additional Stock (as defined below) without consideration or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any for a consideration per Common Stock or Common Stock Equivalents entitling any Person Equivalent Share less than the Warrant Price in effect immediately prior to acquire the issuance of such Additional Stock, then the Warrant Price in effect immediately prior to each such issuance shall forthwith be adjusted to a price determined by multiplying such Warrant Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance plus the number of shares of Common Stock that the aggregate consideration received by the Company for such issuance would purchase at such Warrant Price; and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance plus the number of shares of such Additional Stock, at an effective price per share less than the then Exercise Price . For purposes of this clause (such lower pricei), the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder number of the shares of Common Stock or outstanding at a given time shall be deemed to be the number of shares of Common Stock Equivalents so that are then issued shall at any time, whether by operation and outstanding plus the number of purchase price adjustments, reset provisions, floating conversion, shares of Common Stock then issuable upon exercise or exchange prices or otherwise, or due to of all then outstanding warrants, options or similar rights per share which are issued in connection with such issuance, be entitled to receive purchase Common Stock or securities convertible into Common Stock plus the number of shares of Common Stock at an effective price per share then issuable upon conversion of such convertible securities and all other convertible securities of the Company then outstanding.
(ii) In the case of the issuance of Common Stock for cash, the consideration received therefor shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the company for any underwriting or otherwise in connection with the issuance and sale thereof.
(iii) In the case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash received therefor shall be deemed to be the fair value thereof as reasonably determined by the Board of Directors of the Company in its good faith judgment irrespective of any accounting treatment.
(iv) In the case of the issuance, whether before, on or after the Commencement Date, of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock or options to purchase or rights to subscribe for such convertible or exchangeable securities (which is less than are not excluded from the Exercise Pricedefinition of Additional Stock), the following provisions shall apply:
(A) The aggregate maximum number of shares of Common Stock deliverable upon exercise of such issuance options to purchase or rights to subscribe for Common Stock shall be deemed to have occurred been issued at the time such options or rights were issued and for less than a consideration equal to the Exercise Price on such date of consideration (determined in the Dilutive Issuancemanner provided in clauses (ii) or (iii)), then if any, received by the Exercise Price Company upon the issuance of such options or rights plus the minimum purchase price provided in such options or rights (without taking into account potential anti-dilution adjustments) for the Common Stock covered thereby.
(B) The aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be reduced deemed to have been issued at the time such securities were issued or such options or rights were issued and only reduced for a consideration equal to equal the Base Share Price consideration, if any, received by the corporation for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the additional consideration, if any, to be received by the Company upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in clauses (ii) or (iii)).
(C) In the event of any change in the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease shares of Common Stock deliverable or any increase in the Exercise Priceconsideration payable to this corporation upon exercise of such options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited to, a change resulting from the antidilution provisions thereof, the Warrant Price obtained with respect to the adjustment that was made upon the issuance of such options, rights or securities, and any subsequent adjustments based thereon, shall be equal recomputed to the Aggregate Exercise Price Prior to reflect such adjustment. Such change, but no further adjustment shall be made whenever such for the actual issuance of Common Stock or Common Stock Equivalents are issued. The Company shall notify any payment of such consideration upon the Holder in writingexercise of any such options or rights or the conversion or exchange of such securities.
(D) Upon the expiration of any such options or rights, no later than the Trading Day following termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Warrant Price obtained with respect to the adjustment which was made upon the issuance of such options, rights or securities or options or rights related to such securities, and any subsequent adjustments based thereon, shall be recomputed to reflect the issuance of only the number of shares of Common Stock actually issued upon the exercise of such options or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3rights, upon the occurrence conversion or exchange of such securities or upon the exercise of the options or rights related to such securities. Upon the expiration of any Dilutive Issuancesuch options or rights, after the date termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, only the number of shares of Common Stock actually issued upon the exercise of such Dilutive Issuance options or rights, upon the Holder is entitled conversion or exchange of such securities or upon the exercise of the options or rights related to receive a such securities shall continue to be deemed to be issued.
(E) The number of Warrant Shares based upon shares of Common Stock deemed issued and the Base Share Price regardless consideration deemed paid therefor pursuant to clauses (iv)(A) and (iv)(B) of whether this Section 3(d) shall be appropriately adjusted to reflect any change, termination or expiration of the Holder accurately refers to the Base Share Price type described in the Notice either clause (iv)(C) or (iv)(D) of Exercisethis Section 3(d).
Appears in 1 contract
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicableCompany, at any time while this Warrant is outstandingprior to the uplisting of the Company’s shares of Common Stock on the NYSE American (or any successor thereto) (the, “Uplisting”), shall sell sell, enter into an agreement to sell, or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of reprice, sell or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or common stock equivalent (e.g. warrant, option, convertible debt or equity security) (collectively such Common Stock Equivalents entitling any Person to acquire shares of Common Stockand common stock equivalents the “Lower Priced Securities”), at an effective price per share less than $0.175, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the then Exercise Price Common Stock (the “Conversion Price”) (such lower price, the “Base Share Price,” and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents Lower Priced Securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less than the Exercise Conversion Price, such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive IssuanceIssuance at such effective price and again each time any such right is exercised), then within three business days after the Exercise consummation (or, if earlier, the announcement) of each Dilutive Issuance, the Company shall issue to the Holder, without further consideration, an additional number of shares of Common Stock equal to the difference between (i) the number of shares of Common Stock that would have been issued to the Holder pursuant to Section 4 of this Agreement if the Conversion Price shall be reduced and only reduced to equal had equaled the applicable Base Share Price and (ii) the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal shares of Common Stock originally issued to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to Section 3 of this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseAgreement.
Appears in 1 contract
Dilutive Issuances. (a) If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell the Company issues or grant sells any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockStock in a Subsequent Issuance to Xxxxx Xxxxxxxxxx or Xxxx Xxxxxxxxx (other than (i) an Exempt Issuance or (ii) any portion of such Subsequent Issuance with respect to which the Holder has purchased Common Stock upon exercise of its preemptive rights pursuant to Section 5.1 (clauses (i) and (ii) collectively, at an effective price the “Excluded Portion”)) for consideration per share less than the Fair Market Value Per Share (determined pursuant to the procedures set forth in Section 7.2(e)) immediately prior to the time of such Subsequent Issuance, then Exercise Price (such lower pricethe Warrant Number shall be adjusted by multiplying the Warrant Number immediately prior thereto by a fraction, the “Base Share Price” numerator of which shall be the total number of shares of Outstanding Common Stock immediately after such Subsequent Issuance (other than the Excluded Portion) and such issuances collectively, a “Dilutive Issuance”) (if the holder denominator of which shall be the sum of the number of shares of Outstanding Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation immediately prior to such Subsequent Issuance plus the number of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less that the aggregate consideration received for such Subsequent Issuance (other than the Exercise PriceExcluded Portion) would purchase at the Fair Market Value Per Share (determined pursuant to the procedures set forth in Section 7.2(e)) in effect immediately prior to the time of such Subsequent Issuance.
(b) In the event that the Company at any time issues, sells or grants any Common Stock Equivalents in a Subsequent Issuance to Xxxxx Xxxxxxxxxx or Xxxx Xxxxxxxxx (other than (i) an Exempt Issuance or (ii) any portion of the Subsequent Issuance with respect to which the Holder has purchased Common Stock Equivalents upon exercise of its preemptive rights pursuant to Section 5.1 corresponding to the proportionate amount of the preemptive right in respect of which such issuance purchase is made), then, for purposes of this Section 4.6, the Company shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuanceissued at that time, pursuant to Section 4.6(a), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the a number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be shares of Common Stock equal to the Aggregate Exercise Price Prior maximum number of shares of Common Stock that are or shall become issuable upon the exercise of the purchase, conversion or exchange rights associated with such Common Stock Equivalents for consideration per share equal to (i) the sum of the aggregate consideration per share received by the Company in connection with the issuance, sale or grant of such Common Stock Equivalents, plus (ii) the minimum amount of consideration per share receivable by the Company in connection with the exercise of such Common Stock Equivalents. If, at any time after any adjustment of the Warrant Number shall have been made pursuant to Section 4.6(a) as the result of any issuance, sale or grant of any Common Stock Equivalents, any of such Common Stock Equivalents or the rights of purchase, conversion or exchange associated therewith shall expire, the Warrant Number then in effect shall be decreased to the Warrant Number that would have been in effect if such expiring Common Stock Equivalents or rights of purchase, conversion or exchange had never been issued. Similarly, if, at any time after any such adjustment of the Warrant Number shall have been made pursuant to Section 4.6(a), there is a change in (x) the consideration received or to be received by the Company in connection with the issuance or exercise of such Common Stock Equivalents, or (y) the conversion ratio applicable to such adjustmentCommon Stock Equivalents so that a different number shares of Common Stock shall be issuable upon the conversion or exchange thereof, the Warrant Number then in effect shall be readjusted to the Warrant Number that would have been in effect had such changes taken place at the time that such Common Stock Equivalents were initially issued, granted or sold. Such In no event shall any readjustment under this Section 4.6(a) affect the validity of any Warrant Shares issued upon any exercise of this Warrant prior to such readjustment. To the extent that an adjustment to the Warrant Number is made pursuant to Section 4.6(a), upon the issuance of Common Stock Equivalents, no further adjustment shall be made whenever pursuant to Section 4.6(a) upon the issuance of Common Stock upon exercise or conversion of such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseEquivalents.
Appears in 1 contract
Samples: Warrant Agreement (Pure Earth, Inc.)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell sell, enter into an agreement to sell, or grant any option to purchase, or sell or grant any right to re-pricereprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockEquivalents, at an effective price per share less than the then Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive IssuanceIssuance at such effective price), then simultaneously with the consummation (or, if earlier, the announcement) of each Dilutive Issuance the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate aggregate Exercise Price Payable payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate aggregate Exercise Price Prior prior to such adjustment. Such adjustment Notwithstanding the foregoing, no adjustments shall be made whenever such made, paid or issued under this Section 3(b) in respect of an Exempt Issuance; provided, however, for purposes of this Section 3(b), issuance of shares of Common Stock upon conversion of Preferred Stock issued to Walleye Opportunities Master Fund Ltd. or Common Stock Equivalents are issuedAltium Growth Fund, L.P. (or their respective designees) pursuant to that certain Exchange Agreement dated as of the date hereof shall not be deemed an Exempt Issuace hereunder and if the applicable Conversion Price is less than the Exercise Price hereunder, shall result in an adjustment hereunder. The Company shall notify the Holder Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(b), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. If the Company enters into a Variable Rate Transaction, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible price, conversion price or exercise price at which such securities may be issued, converted or exercised.
Appears in 1 contract
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, shall at any time while or from time to time, after the issuance of this Warrant is outstandingbut prior to the exercise hereof, shall sell or grant any option to purchase, issue or sell (such issuance or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other dispositiona “New Issuance”) any shares of Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective a price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which (the “New Issue Price”) that is less than the Exercise PricePrice then in effect as of the record date or Issue Date (as defined below), as the case may be (the “Relevant Date”) (treating the price per share of Common Stock, in the case of the issuance of any Common Stock Equivalent, as equal to (x) the sum of the price for such issuance Common Stock Equivalent plus any additional consideration payable (without regard to any anti-dilution adjustments) upon the conversion, exchange or exercise of such Common Stock Equivalent divided by (y) the number of shares of Common Stock initially underlying such Common Stock Equivalent), other than (i) issuances or sales for which an adjustment is made pursuant to another subsection of this Section 3 and (ii) issuances in connection with an Excluded Transaction, then, and in each such case, (A) the Exercise Price then in effect shall be deemed adjusted by multiplying the Exercise Price in effect on the day immediately prior to have occurred the Relevant Date by a fraction (I) the numerator of which shall be the sum of the number of shares of Common Stock outstanding on the Relevant Date plus the number of shares of Common Stock which the aggregate consideration received by the Company for less than the total number of such additional shares of Common Stock so issued would purchase at the Exercise Price on the Relevant Date (or, in the case of Common Stock Equivalents, the number of shares of Common Stock which the aggregate consideration received by the Company upon the issuance of such date Common Stock Equivalents and receivable by the Company upon the conversion, exchange or exercise of such Common Stock Equivalents would purchase at the Exercise Price on the Relevant Date) and (II) the denominator of which shall be the sum of the Dilutive Issuance)number of shares of Common Stock outstanding on the Relevant Date plus the number of additional shares of Common Stock issued or to be issued (or, then in the case of Common Stock Equivalents, the maximum number of shares of Common Stock into which such Common Stock Equivalents initially may convert, exchange or be exercised) and (B) the aggregate number of Warrant Shares for which this Warrant is exercisable immediately after the New Issuance shall be increased to equal the product of (i) the aggregate number of Warrant Shares for which this Warrant is exercisable immediately prior to the New Issuance multiplied by (ii) a fraction, the numerator of which shall be the Exercise Price in effect on the day immediately prior to the Relevant Date and the denominator of which shall be the Exercise Price in effect immediately after such adjustment. Notwithstanding the foregoing, the Exercise Price shall not be reduced and only reduced to equal at such time if the Base Share Price and the number amount of Warrant Shares issuable hereunder such reduction would be less than $0.01, but any such amount shall be increased carried forward, and a reduction will be made with respect to such that amount at the Aggregate Exercise Price Payable hereundertime of, after taking into account the decrease and together with, any subsequent reduction which, together with such amount and any other amounts so carried forward, equal $0.01 or more in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issuedaggregate. The Company shall promptly notify the Holder in writing, no later than the Trading Day writing following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive New Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive New Issuance Notice pursuant to this Section 5.33(b), upon the occurrence of any Dilutive New Issuance, after the date of such Dilutive New Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price provisions of this Section 3(b) regardless of whether the Holder accurately refers to the Base Share Exercise Price in the Notice of Exercise. Any adjustment pursuant to the preceding provisions of this Section 3(b) shall be made whenever such shares of Common Stock or Common Stock Equivalents are issued, and shall become effective retroactively (x) in the case of an issuance to the stockholders of the Company, as such, to a date immediately following the close of business on the record date for the determination of shareholders entitled to receive such shares of Common Stock or Common Stock Equivalents and (y) in all other cases, on the date (the “Issue Date”) of such issuance.
Appears in 1 contract
Samples: Securities Agreement (Nutracea)
Dilutive Issuances. If the Company or any Subsidiary subsidiary thereof, as applicable, at any time while this the Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common StockStock (other than an Exempt Issuance), at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, the Holder may only enforce its rights under this Section 5.3 after the date that is one hundred eighty (180) calendar days after the Issue Date, provided, however, that at such time the Holder may enforce its rights to all adjustments hereunder that apply even if the Dilutive Issuance occurred prior to the date that is one hundred eighty (180) calendar days after the Issue Date. “Exempt Issuance” shall mean: (i) Common Stock and Common Stock Equivalents issued pursuant to an Uplist Offering, (ii) Common Stock or Common Stock Equivalents issued to employees or directors of, or consultants, advisors or service providers to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Company, (iii) shares Common Stock actually issued upon the exercise of Common Stock Equivalents for which an adjustment has already been made pursuant to this Section 5.3, (iv) Common Stock and Common Stock Equivalents issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board of Directors of the Company, (v) Common Stock and Common Stock Equivalents issued to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions approved by the Board of Directors of the Company, (vi) Common Stock and Common Stock Equivalents issued as acquisition consideration pursuant to the acquisition of another business by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided that such issuances are approved by the Board of Directors of the Company, and (vii) Common Stock and Common Stock Equivalents issued in connection with sponsored research, collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships approved by the Board of Directors of the Company. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents Dilutive Issuance subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms terms, as well as the applicable increased Warrant Share amount hereunder as a result of such Dilutive Issuance (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price as well as utilize the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. Notwithstanding the foregoing, if (i) the Exercise Price is adjusted to the Uplist Exercise Price as described in this Warrant and (ii) the Note has been repaid in its entirety, then the Holder shall never be entitled to enforce its rights to the adjustments under this Section 5.3 with respect any Dilutive Issuance(s).
Appears in 1 contract
Dilutive Issuances. If and whenever the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose should issue ------------------ shares of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any its Common Stock or Common Stock Equivalents entitling any Person to acquire other securities exercisable for or convertible into shares of Common Stock, Stock at an effective a price per share less than the Warrant Price, as adjusted for stock splits, combinations, dividends and recapitalizations pursuant to this Section 4, in effect immediately prior to such issuance (other than shares issued or issuable to the officers or directors of or consultants to the Company issued pursuant to a stock option or purchase plan or similar arrangement), then Exercise the Warrant Price shall be adjusted to an amount (calculated to the nearest cent) determined by dividing (1) the sum of (A) the total number of shares of Fully Diluted Common Stock outstanding immediately prior to such lower price, issuance multiplied by the “Base Share Price” then effective Warrant Price and (B) the value of the consideration received by the Company upon such issuances collectively, a “Dilutive Issuance”issuance as determined by the Board of Directors by (2) (if the total number of shares of Fully Diluted Common Stock outstanding immediately after such issuance. The holder of the Warrant shall thereafter be entitled to purchase, at the Warrant Price resulting from such adjustment, the number of shares of Common Stock or (calculated to the nearest whole share) obtained by multiplying the Warrant Price in effect immediately prior to such adjustment by the number of shares of Fully Diluted Common Stock Equivalents so issued issuable upon the exercise hereof immediately prior to such adjustment and dividing the product thereof by the Warrant Price resulting from such adjustment. For the purposes of this paragraph (d), the consideration received for securities convertible into or exercisable or exchangeable for the Common Stock shall at any time, whether by operation of purchase price adjustments, reset provisions, floating be deemed to include the minimum aggregate amount payable upon conversion, exercise or exchange prices of such securities. In the event the right to convert, exercise or otherwiseexchange such securities expires unexercised, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive the Warrant Price of shares of Common Stock at an effective price per share which is less than issuable upon the Exercise Price, such issuance exercise hereof shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercisereadjusted accordingly.
Appears in 1 contract
Dilutive Issuances. 5.1 Issuances Below the Trigger Price Prior to Automatic Conversion Date. If the Company or any Subsidiary thereof, as applicable, shall prior to the Automatic Conversion Date at any time while this Warrant is outstanding, shall sell or offer, sell, grant any option to purchasepurchase or offer, or sell or grant any right to re-pricereprice its securities, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or any security convertible or exercisable into Common Stock Equivalents ("Common Stock Equivalents") entitling any Person person to acquire shares of Common Stock, at an effective price per share of less than the lesser of (x) $.191662 per share (as such amount may be adjusted from time to time as contemplated herein, the "Reference Price") and (y) the then effective Common Exercise Price (such lower pricelesser amount, as adjusted from time to time as contemplated herein, the “Base Share "Trigger Price” and such issuances collectively, a “Dilutive Issuance”") (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are is issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Trigger Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive IssuanceTrigger Price), then the Preferred Exercise Price shall be reduced and only reduced to a price determined by dividing (i) an amount equal to the Base Share Price and sum of (a) the total number of shares of Common Stock outstanding immediately prior to such issuance or sale, plus (b) the number of Warrant Shares shares of Common Stock which the consideration, if any, received by the Company upon such issuance or sale would purchase at the Common Exercise Price by (ii) the total number of shares of Common Stock outstanding immediately after such issuance or sale, and multiplying the Common Exercise Price by such quotient and thereafter multiplying the product so obtained by the Conversion Ratio, provided, that for purposes hereof, all shares of Common Stock that are issuable hereunder upon conversion, exercise or exchange of Common Stock Equivalents shall be increased deemed outstanding immediately after the issuance of such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustmentCommon Stock Equivalents. Such adjustment shall be made whenever such shares of Common Stock or Common Stock Equivalents are issued. The Company This
Section 5.1 in its entirety shall notify apply only prior to the Holder in writing, Automatic Conversion Date and shall have no later than the Trading Day following the issuance of any Common Stock force or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price effect from and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseAutomatic Conversion Date at which time Section 5.2 shall apply.
Appears in 1 contract
Samples: Warrant Agreement (TRUEYOU.COM)
Dilutive Issuances. If and whenever on or after the Original Issue Date the Borrower issues or sells, or in accordance with this Section 4(d), is deemed to have issued or sold, any shares of Common Stock (excluding shares of Common Stock deemed to have been issued or sold by the Borrower in connection with any Excluded Security) for a consideration per share less than the Conversion Price in effect immediately prior to such issue or sale (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced effective concurrently with such Dilutive Issuance to an amount equal to the consideration per share received by the Borrower in the Dilutive Issuance. For purposes of determining the adjusted Conversion Price under this Section 4(d)(ii), the following shall be applicable:
a. If the Company or any Subsidiary thereof, as applicableBorrower shall, at any time while or from time to time after the Original Issue Date, in any manner grant or sell (whether directly or by assumption in a merger or otherwise) any Options or Convertible Securities, whether or not such Options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such Options or upon the conversion or exchange of such Convertible Securities is less than the Conversion Price in effect immediately prior to the time of the granting or sale of such Options or Convertible Securities, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of Convertible Securities shall be deemed to have been issued as of the date of granting or sale of such Options or Convertible Securities (and thereafter shall be deemed to be outstanding for purposes of adjusting the Conversion Price under this Warrant is outstandingSection), at a price per share equal to the quotient obtained by dividing (A) the sum (which sum shall sell constitute the applicable consideration received for purposes of this Section 4(d)(ii)) of (x) the total amount, if any, received or grant receivable by the Borrower as consideration for the granting or sale of all such Options or Convertible Securities, plus (y) the minimum aggregate amount of additional consideration payable to the Borrower upon the exercise of all such Options or upon the conversion or exchange of all such Convertible Securities, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of all such Options or upon the conversion or exchange of all such Convertible Securities. Except as otherwise provided in Section 4(d)(ii)(b) below, no further adjustment of the Conversion Price shall be made upon the actual issuance of Common Stock upon exercise of such Options or conversion or exchange of such Convertible Securities.
b. If the purchase price provided for in any option to purchaseOptions, the additional consideration, if any, payable upon the issue, conversion, exchange or exercise of any Convertible Securities, or sell the rate at which any Convertible Securities are convertible into or grant exchangeable or exercisable for shares of Common Stock changes at any right time, the Conversion Price in effect at the time of such change shall be adjusted to re-the Conversion Price which would have been in effect at such time had such Options or Convertible Securities provided for such changed purchase price, additional consideration or otherwise dispose changed conversion rate, as the case may be, at the time initially granted, issued or sold.
c. In case any Option is issued in connection with the issue or sale of or issue (or announce other securities of the Borrower, together comprising one integrated transaction in which no specific consideration is allocated to such Options by the parties thereto, the Options will be deemed to have been issued for a consideration of $0.001. If any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower priceOptions or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if consideration received therefor will be deemed to be the holder of net amount received by the Common Stock or Common Stock Equivalents so issued shall at Borrower therefor. If any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date amount of the Dilutive Issuance), then consideration other than cash received by the Exercise Price shall Borrower will be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date fair value of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exerciseconsideration.
Appears in 1 contract
Samples: Revolving Credit Agreement (Cesca Therapeutics Inc.)
Dilutive Issuances. (A) If the Company Maker, at any time or from time to time, issues or sells any Subsidiary thereofAdditional Shares of Common Stock (as defined below), other than as provided in the foregoing subsections of this Section 3(e), for a price per share (which, in the case of options, warrants, convertible securities or other rights, includes the amounts paid therefor plus the exercise price, conversion price or other such amounts payable thereunder) that is less than the Conversion Price then in effect, then and in each such case, the then applicable Conversion Price shall automatically be reduced as of the opening of business on the date of such issue or sale, to a price determined by multiplying the Conversion Price then in effect by a fraction (i) the numerator of which shall be (A) the number of share of Common Stock deemed outstanding (as determined below) immediately prior to such issue or sale, plus (B) the number of shares of Common Stock which the aggregate consideration received by the Maker for the total number of Additional Shares of Common Stock so issued would purchase at the Conversion Price then in effect, and (ii) the denominator of which shall be the number of shares of Common Stock deemed outstanding (as defined below) immediately prior to such issue or sale plus the total number of Additional Shares of Common Stock so issued; provided, however, that upon the expiration or other termination of options, warrants or other rights to purchase or acquire Common Stock which triggered any adjustment under this Section 3(e)(vii), and upon the expiration or termination of the right to convert or exchange convertible or exchangeable securities (whether by reason of redemption or otherwise) which triggered any adjustment under this Section 3(e)(vii), if any thereof shall not have been exercised, converted or exchanged, as applicable, at any time while the number of shares of Common Stock deemed to be outstanding pursuant to this Warrant is outstandingSection 3(e)(vii) shall be reduced by the number of shares as to which options, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option warrants and rights to purchase or other disposition) any acquire Common Stock shall have expired or terminated unexercised, and as to which conversion or exchange rights shall have expired or terminated unexercised, and such number of shares shall no longer be deemed to be outstanding; and the Conversion Price then in effect shall forthwith be readjusted and thereafter be the price that it would have been had adjustment been made on the basis of the issuance only of the shares of Common Stock Equivalents entitling any Person actually issued. For purposes of the preceding sentence, the number of shares of Common Stock deemed to acquire be outstanding as of a given date shall be the sum of (x) the number of shares of Common Stock actually outstanding, (y) the number of shares of Common Stock into which this Note could be converted on the day immediately preceding the given date, and (z) the number of shares of Common Stock which could be obtained through the exercise or conversion of all other rights, options and convertible securities outstanding on the day immediately preceding the given date. For purposes hereof, “Additional Shares of Common Stock” shall mean all shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower priceand all options, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options convertible securities or other rights per share which are to purchase or acquire Common Stock, issued in connection with such issuance, be entitled to receive by the Maker other than (i) shares of Common Stock at issued pursuant to the exercise of options, warrants or convertible securities outstanding on August 31, 2008 (including, without limitation, all of the Warrants issued pursuant to the Loan Agreement), or hereafter issued from time to time pursuant to and in accordance with stock purchase or stock option plans as in effect on August 31, 2008, and (ii) shares of Common Stock and/or options, warrants or other Common Stock purchase rights for up to an effective aggregate of 2,000,000 shares of Common Stock (such number to be subject to adjustment in accordance with Sections 3(e)(i) and 3(e)(ii) above), provided that, in each case, such options, warrants or other rights (A) have an exercise price per share which is less of Common Stock equal to or greater than the Exercise Pricethen-current fair market value of a share of Common Stock, such issuance shall be deemed to have occurred for less than as determined in good faith by the Exercise Price on such date Board of Directors of the Dilutive Issuance)Maker or the Compensation Committee thereof, then the Exercise Price shall be reduced and only reduced (B) are issued to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunderemployees, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock officers or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance pricedirectors of, or applicable reset priceconsultants to, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether Maker or not the Company provides a Dilutive Issuance Notice any Subsidiary pursuant to this Section 5.3stock purchase or stock option plans or other arrangements that are approved by the Maker’s Board of Directors or the Compensation Committee thereof, upon and by the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseMaker’s stockholders.
Appears in 1 contract
Samples: Convertible Term Note (General Environmental Management, Inc)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant Note is outstanding, outstanding shall sell or grant issue any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue convertible debt (or announce any offer, sale, grant or any option to purchase or other disposition“Convertible Debt”) any Common Stock or Common Stock Equivalents entitling any Person person to acquire in excess of 100,000 shares of Common Stock, at an effective price per share less than the then Exercise Conversion Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (or if the holder of the any Common Stock or Common Stock Equivalents so equivalents (‘Common Stock Equivalents”) issued in connection therewith shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, Conversion Price (such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive Issuance), then the Exercise Conversion Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Conversion Shares issuable hereunder shall be increased such that the Aggregate Exercise Conversion Price Payable hereunder, after taking into account the decrease in the Exercise Conversion Price, shall be equal to the Aggregate Exercise Conversion Price Prior to such adjustment. Such adjustment shall be made whenever such Convertible Debt, Common Stock or Common Stock Equivalents constituting a Dilutive Issuance are issued. The Company shall notify Notwithstanding the Holder in writingforegoing, no later than the Trading Day following the issuance adjustments shall be made, paid or issued under this Section 3I in respect of any an Exempt Issuance. Exempt Issuances shall not include (1) shares of Common Stock and options, warrants or other rights to purchase Common Stock issued or issuable to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock grants, restricted stock purchase agreements, option plans, purchase plans, incentive programs or similar arrangements; (2) shares of Common Stock issued upon the exercise or conversion of Common Stock Equivalents subject outstanding at the issue date of this Note; (3) shares of Common Stock issued or issuable pursuant to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes acquisition of clarification, whether or not another corporation by the Company provides by merger, purchase of substantially all of the assets or other reorganization or to a Dilutive Issuance Notice pursuant to this Section 5.3joint venture agreement, upon provided, that such issuances are unanimously approved by the occurrence Company’s Board of any Dilutive IssuanceDirectors; and (4) shares of Common Stock issued or issuable in connection with sponsored research, after collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships unanimously approved by the date Company’s Board of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseDirectors.
Appears in 1 contract
Dilutive Issuances. (i) If and whenever the Company sells or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchaseissues, or sell or grant any right is deemed to re-pricehave issued pursuant to Section 2(c)(ii), or otherwise dispose Additional Shares of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price in a Material Financing after the Issuance Date for consideration per share less than the then Exercise Price in effect immediately prior to the time of such issue or sale, then and in each such case (a “Trigger Issuance”) the then-existing Exercise Price shall be reduced to the consideration per share received by the Company in such lower priceTrigger Issuance. In no event, however, will the Exercise Price be adjusted pursuant to this Section 2(c) to less than $0.40 (as such amount may be ratably adjusted pursuant to any stock split, reverse stock split or similar transaction, the “Base Share Floor Price” and such issuances collectively, a “Dilutive Issuance”).
(ii) (if If the holder of the Common Stock or Common Stock Equivalents so issued shall Company at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise time or exchange prices from time to time after the Issuance Date shall issue any Options or otherwise, Convertible Securities (excluding Options or due to warrants, options or rights per share Convertible Securities which are issued in connection with such issuance, be themselves Exempted Securities) or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock at an effective price per share which is less than (as set forth in the Exercise Priceinstrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such issuance number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have occurred for less than been fixed, as of the close of business on such record date. Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Exercise Price on such date pursuant to the terms of the Dilutive IssuanceSection 2(c)(i), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior readjusted to such adjustment. Such adjustment shall be made whenever Exercise as would have obtained had such Common Stock Option or Common Stock Equivalents are Convertible Security (or portion thereof) never been issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.
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Dilutive Issuances. (A) If the Company Maker, at any time or from time to time, issues or sells any Subsidiary thereofAdditional Shares of Common Stock (as defined below), other than as provided in the foregoing subsections of this Section 3(e), for a price per share (which, in the case of options, warrants, convertible securities or other rights, includes the amounts paid therefor plus the exercise price, conversion price or other such amounts payable thereunder) that is less than the Conversion Price then in effect, then and in each such case, the then applicable Conversion Price shall automatically be reduced as of the opening of business on the date of such issue or sale, to a price determined by multiplying the Conversion Price then in effect by a fraction (i) the numerator of which shall be (A) the number of share of Common Stock deemed outstanding (as determined below) immediately prior to such issue or sale, plus (B) the number of shares of Common Stock which the aggregate consideration received by the Maker for the total number of Additional Shares of Common Stock so issued would purchase at the Conversion Price then in effect, and (ii) the denominator of which shall be the number of shares of Common Stock deemed outstanding (as defined below) immediately prior to such issue or sale plus the total number of Additional Shares of Common Stock so issued; provided, however, that upon the expiration or other termination of options, warrants or other rights to purchase or acquire Common Stock which triggered any adjustment under this Section 3(e)(vii), and upon the expiration or termination of the right to convert or exchange convertible or exchangeable securities (whether by reason of redemption or otherwise) which triggered any adjustment under this Section 3(e)(vii), if any thereof shall not have been exercised, converted or exchanged, as applicable, at any time while the number of shares of Common Stock deemed to be outstanding pursuant to this Warrant is outstandingSection 3(e)(vii) shall be reduced by the number of shares as to which options, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option warrants and rights to purchase or other disposition) any acquire Common Stock shall have expired or terminated unexercised, and as to which conversion or exchange rights shall have expired or terminated unexercised, and such number of shares shall no longer be deemed to be outstanding; and the Conversion Price then in effect shall forthwith be readjusted and thereafter be the price that it would have been had adjustment been made on the basis of the issuance only of the shares of Common Stock Equivalents entitling any Person actually issued. For purposes of the preceding sentence, the number of shares of Common Stock deemed to acquire be outstanding as of a given date shall be the sum of (x) the number of shares of Common Stock actually outstanding, (y) the number of shares of Common Stock into which this Note could be converted on the day immediately preceding the given date, and (z) the number of shares of Common Stock which could be obtained through the exercise or conversion of all other rights, options and convertible securities outstanding on the day immediately preceding the given date. For purposes hereof, “Additional Shares of Common Stock” shall mean all shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower priceand all options, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options convertible securities or other rights per share which are to purchase or acquire Common Stock, issued in connection with such issuance, be entitled to receive by the Maker other than (i) shares of Common Stock at issued pursuant to the exercise of options, warrants or convertible securities outstanding on September 1, 2009 (including, without limitation, all of the Warrants issued pursuant to the Loan Agreement), or hereafter issued from time to time pursuant to and in accordance with stock purchase or stock option plans as in effect on September 1, 2009, and (ii) shares of Common Stock and/or options, warrants or other Common Stock purchase rights for up to an effective aggregate of 2,000,000 shares of Common Stock (such number to be subject to adjustment in accordance with Sections 3(e)(i) and 3(e)(ii) above), provided that, in each case, such options, warrants or other rights (A) have an exercise price per share which is less of Common Stock equal to or greater than the Exercise Pricethen-current fair market value of a share of Common Stock, such issuance shall be deemed to have occurred for less than as determined in good faith by the Exercise Price on such date Board of Directors of the Dilutive Issuance)Maker or the Compensation Committee thereof, then the Exercise Price shall be reduced and only reduced (B) are issued to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunderemployees, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock officers or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance pricedirectors of, or applicable reset priceconsultants to, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether Maker or not the Company provides a Dilutive Issuance Notice any Subsidiary pursuant to this Section 5.3stock purchase or stock option plans or other arrangements that are approved by the Maker’s Board of Directors or the Compensation Committee thereof, upon and by the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseMaker’s stockholders.
Appears in 1 contract
Samples: Convertible Term Note (General Environmental Management, Inc)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicableCompany, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) in any financing greater than $25,000, except a Significant Financing, as defined below (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify Notwithstanding the Holder in writingforegoing, no later than the Trading Day following adjustments shall be made, paid or issued under this Section 5.3 in respect to Exempt Issuances. Exempt Issuances means the issuance of any (a) Common Stock or Common Stock Equivalents subject options to this Section 5.3employees, indicating therein officers, directors, consultants or collaborators of the applicable issuance priceCompany pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice b) securities issued pursuant to this Section 5.3commercial collaborations, upon acquisitions or strategic transactions approved by a majority of the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercisedisinterested directors.
Appears in 1 contract
Samples: Warrant Agreement (Spiral Toys Inc.)
Dilutive Issuances. 5.1 Deemed Issue of Additional Shares of Common Stock. -------------------------------------------------
(i) If the Company or any Subsidiary thereof, as applicable, at any time while or from time to time after the date of the issuance of this Warrant is outstanding, shall sell issue any Options or grant Convertible Securities or shall fix a record date for the determination of holders of any option to purchase, or sell or grant any right to re-price, or otherwise dispose class of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock at (or Other Securities) (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.
(ii) If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Exercise Price pursuant to the terms of Section 5.2 below, are revised (either automatically pursuant to the provisions contained therein or as a result of an amendment to such terms) to provide for either (1) any increase or decrease in the number of shares of Common Stock (or Other Securities) issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Company upon such exercise, conversion or exchange, then, effective price upon such increase or decrease becoming effective, the Exercise Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted to such Exercise Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no adjustment pursuant to this clause (ii) shall have the effect of increasing the Exercise Price to an amount which exceeds the lower of (i) the Exercise Price on the original adjustment date, or (ii) the Exercise Price that would have resulted from any issuances of Additional Shares of Common Stock between the original adjustment date and such readjustment date.
(iii) If the terms of any Option or Convertible Security, the issuance of which did not result in an adjustment to the Exercise Price pursuant to the terms of Section 5.2 below (either because the consideration per share which is less of the Additional Shares of Common Stock subject thereto was equal to or greater than the Exercise PricePrice then in effect, or because such Option or Convertible Security was issued before the issuance of this Warrant), are revised after the issuance of this Warrant (either automatically pursuant to the provisions contained therein or as a result of an amendment to such terms) to provide for either (1) any increase or decrease in the number of shares of Common Stock (or Other Securities) issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Company upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended, and the Additional Shares of Common Stock subject thereto shall be deemed to have occurred for less than been issued effective upon such increase or decrease becoming effective.
(iv) Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Exercise Price on such date pursuant to the terms of the Dilutive Issuance)Section 5.2 below, then the Exercise Price shall be reduced and only reduced readjusted to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to as would have obtained had such adjustment. Such adjustment shall be made whenever such Common Stock Option or Common Stock Equivalents are Convertible Security never been issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.
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Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant Note is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Conversion Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Conversion Price, such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive Issuance), then the Exercise Conversion Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issuedissued (with the exception of Exempt issuances). The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(d)(iv), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(d)(iv), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseConversion Notice.
Appears in 1 contract
Samples: Convertible Note (Biolargo, Inc.)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, shall at any time while or from time to time, after the issuance of this Warrant is outstandingNote but prior to the Maturity Date, shall sell or grant any option to purchase, issue or sell (such issuance or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other dispositiona “New Issuance”) any shares of Common Stock or Common Stock Equivalents entitling any Person to acquire shares at a price per share of Common Stock (the “New Issue Price”) that is less than the Conversion Price then in effect as of the record date or Issue Date (as defined below), as the case may be (the “Relevant Date”) (treating the price per share of Common Stock, at an effective price per share less than in the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder case of the issuance of any Common Stock or Equivalent, as equal to (x) the sum of the price for such Common Stock Equivalents so issued shall at Equivalent plus any time, whether by operation of purchase price additional consideration payable (without regard to any anti-dilution adjustments, reset provisions, floating ) upon the conversion, exchange or exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with of such issuance, be entitled to receive Common Stock Equivalent divided by (y) the number of shares of Common Stock at initially underlying such Common Stock Equivalent), other than (i) issuances or sales for which an effective price per share which adjustment is less than made pursuant to another subsection of this Section 15, and (ii) Exempt Issuances, then, and in each such case, the Exercise Price, such issuance Conversion Price then in effect shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced adjusted to equal the Base Share Price and New Issue Price. For the avoidance of doubt, whether or not the Company provides a notice of adjustment pursuant to this Section 15(c), upon the occurrence of any New Issuance, after the date of such New Issuance the Investor is entitled to receive a number of Warrant Shares issuable hereunder shall be increased such that based upon the Aggregate Exercise provisions of this Section 15(c) regardless of whether the Investor accurately refers to the Conversion Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal Notice of Conversion. Any adjustment pursuant to the Aggregate Exercise Price Prior to such adjustment. Such adjustment preceding provisions of this Section 15(c) shall be made whenever such shares of Common Stock or Common Stock Equivalents are issued. The Company , and shall notify become effective on the Holder in writingdate (the “Issue Date”) of such issuance; provided, no later than however, that the Trading Day following determination as to whether an adjustment is required to be made pursuant to this Section 15(c) shall be made only upon the issuance of any such shares of Common Stock or Common Stock Equivalents, and not upon the issuance of any security into which the Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset priceconvert, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercisemay be exercised.
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Dilutive Issuances. The Exercise Price shall be subject to adjustment from time to time as follows:
(A) If the Company shall issue, after the Warrant Issue Date, any Additional Stock (as defined below) without consideration or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price for a consideration per share less than the then Unit Purchase Price (as defined in the Unit Purchase Agreement) in effect immediately prior to the issuance of such Additional Stock, the Exercise Price in effect immediately prior to each such issuance shall forthwith (except as otherwise provided in this clause (i)) be adjusted to a price equal to the price paid per share for such lower priceAdditional Stock [plus ten percent (10%)]; provided, however that the Exercise Price shall not be adjusted to a price below $0.10 (as adjusted for stock splits, stock dividends, combinations, recapitalizations or like changes in the Company's capital structure).
(B) In the case of the issuance of Common Stock for cash, the “Base Share Price” consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the Company for any underwriting or otherwise in connection with the issuance and such issuances collectively, a “Dilutive Issuance”sale thereof.
(C) (if In the holder case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined by the Board of Directors irrespective of any accounting treatment.
(D) In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of options to purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with to subscribe for such issuanceconvertible or exchangeable securities, be entitled to receive the following provisions shall apply for all purposes of this subsection 8(c)(i) and subsection 8(c)(ii):
(1) The number of shares of Common Stock at an effective price per share which is less than deliverable upon exercise (to the Exercise Price, extent then exercisable) of such issuance options to purchase or rights to subscribe for Common Stock shall be deemed to have occurred been issued at the time such options or rights were issued and for less than a consideration equal to the consideration (determined in the manner provided in subsections 8(c)(i)(B) and 8(c)(i)(C)), if any, received by the Company upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights for the Common Stock covered thereby.
(2) The number of shares of Common Stock deliverable upon conversion of, or in exchange (to the extent then convertible or exchangeable) for, any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the Company for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the Company upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in subsections 8(c)(i)(B) and (c)(i)(C)).
(3) In the event of any change in the consideration payable to the Company upon exercise of such options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited to, a change resulting from the antidilution provisions thereof, the Exercise Price on Price, to the extent in any way affected by such date options, rights or securities, shall be recomputed to reflect such change, but no further adjustment shall be made for the actual issuance of Common Stock or any payment of such consideration upon the Dilutive Issuance)exercise of any such options or rights or the conversion or exchange of such securities.
(4) Upon the expiration of any such options or rights, then the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, without the exercise, conversion or exchange of any foregoing into Common Stock, the Exercise Price shall be reduced and only reduced recomputed to equal reflect the Base Share Price assumption that none of such options, rights or convertible or exchangeable securities had ever been issued.
(5) The Common Stock deemed issued and the number of Warrant Shares issuable hereunder consideration deemed paid therefor pursuant to subsections 8(c)(i)(D)( 1) and (2) shall be increased such that appropriately adjusted to reflect any change, termination or expiration of the Aggregate Exercise Price Payable hereunder, after taking into account the decrease type described in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock either subsection 8(c)(i)(D)(3) or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”4). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.
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Dilutive Issuances. (A) If the Company Maker, at any time or from time to time, issues or sells any Subsidiary thereofAdditional Shares of Common Stock (as defined below), other than as provided in the foregoing subsections of this Section 3(e), for a price per share (which, in the case of options, warrants, convertible securities or other rights, includes the amounts paid therefor plus the exercise price, conversion price or other such amounts payable thereunder) that is less than the Conversion Price then in effect, then and in each such case, the then applicable Conversion Price shall automatically be reduced as of the opening of business on the date of such issue or sale, to a price determined by multiplying the Conversion Price then in effect by a fraction (i) the numerator of which shall be (A) the number of shares of Common Stock deemed outstanding (as determined below) immediately prior to such issue or sale, plus (B) the number of shares of Common Stock which the aggregate consideration received by the Maker for the total number of Additional Shares of Common Stock so issued would purchase at such Conversion Price, and (ii) the denominator of which shall be the number of shares of Common Stock deemed outstanding (as defined below) immediately prior to such issue or sale plus the total number of Additional Shares of Common Stock so issued; provided, however, that upon the expiration or other termination of options, warrants or other rights to purchase or acquire Common Stock which triggered any adjustment under this Section 3(e)(vii), and upon the expiration or termination of the right to convert or exchange convertible or exchangeable securities (whether by reason of redemption or otherwise) which triggered any adjustment under this Section 3(e)(vii), if any thereof shall not have been exercised, converted or exchanged, as applicable, at any time while the number of shares of Common Stock deemed to be outstanding pursuant to this Warrant is outstandingSection 3(e)(vii) shall be reduced by the number of shares as to which options, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option warrants and rights to purchase or other disposition) any acquire Common Stock shall have expired or terminated unexercised, and as to which conversion or exchange rights shall have expired or terminated unexercised, and such number of shares shall no longer be deemed to be outstanding; and the Conversion Price then in effect shall forthwith be readjusted and thereafter be the price that it would have been had adjustment been made on the basis of the issuance only of the shares of Common Stock Equivalents entitling any Person actually issued. For purposes of the preceding sentence, the number of shares of Common Stock deemed to acquire be outstanding as of a given date shall be the sum of (x) the number of shares of Common Stock actually outstanding, (y) the number of shares of Common Stock into which this Note could be converted on the day immediately preceding the given date, and (z) the number of shares of Common Stock which could be obtained through the exercise or conversion of all other rights, options and convertible securities outstanding on the day immediately preceding the given date. “Additional Shares of Common Stock” shall mean all shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower priceand all options, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options convertible securities or other rights per share which are to purchase or acquire Common Stock, issued in connection with such issuance, be entitled to receive by the Maker other than (i) shares of Common Stock at issued pursuant to the exercise of options, warrants or convertible securities outstanding on the date hereof (without giving effect to any voluntary reduction of the exercise price or conversion price thereunder), or hereafter issued from time to time pursuant to and in accordance with stock purchase or stock option plans as in effect on the date hereof, and (ii) shares of Common Stock and/or options, warrants or other Common Stock purchase rights for up to an effective price aggregate of 5,000,000 shares of Common Stock (such number to be subject to adjustment in accordance with Sections 3(e)(i) and 3(e)(ii) above), where such options, warrants or other rights are issued both (x) with exercise prices per share which is less than of Common Stock at the Exercise Pricethen-current fair market value of a share of Common Stock, such issuance shall be deemed to have occurred for less than as determined in good faith by the Exercise Price on such date Board of Directors of the Dilutive Issuance)Maker or the Compensation Committee thereof, then the Exercise Price shall be reduced and only reduced (B) to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunderemployees, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock officers or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance pricedirectors of, or applicable reset priceconsultants to, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether Maker or not the Company provides a Dilutive Issuance Notice any Subsidiary pursuant to this Section 5.3stock purchase or stock option plans or other arrangements that are approved by the Maker’s Board of Directors or the Compensation Committee thereof, upon and by the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseMaker’s stockholders.
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Samples: Term Note (Crdentia Corp)
Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire in excess of 10,000 shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents constituting a Dilutive Issuance are issued. The Company shall notify Notwithstanding the Holder in writingforegoing, no later than the Trading Day following the issuance adjustments shall be made, paid or issued under this Section 5.3 in respect of any an Exempt Issuance. Exempt Issuances shall include (1) shares of Common Stock and options, warrants or other rights to purchase Common Stock issued or issuable to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock grants, restricted stock purchase agreements, option plans, purchase plans, incentive programs or similar arrangements; (2) shares of Common Stock issued upon the exercise or conversion of Common Stock Equivalents subject outstanding at the issue date of this Warrant; (3) shares of Common Stock issued or issuable in the current equity line financing offering on file with the Securities and Exchange Commission (Registration No. 333-213406); (4) shares of Common Stock issued or issuable pursuant to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes acquisition of clarification, whether or not another corporation by the Company provides by merger, purchase of substantially all of the assets or other reorganization or to a Dilutive Issuance Notice pursuant to this Section 5.3joint venture agreement, upon provided, that such issuances are unanimously approved by the occurrence Company’s Board of any Dilutive IssuanceDirectors; and (5) shares of Common Stock issued or issuable in connection with sponsored research, after collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships unanimously approved by the date Company’s Board of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseDirectors.
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Dilutive Issuances. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant Note is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Conversion Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Conversion Price, such issuance shall be deemed to have occurred for less than the Exercise Conversion Price on such date of the Dilutive Issuance), then the Exercise Conversion Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.33(d)(iv), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.33(d)(iv), upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice Conversion Notice. Notwithstanding the foregoing, no adjustment will be made under this Section 3(d)(iv) in respect of Exercisean Exempt Issuance. An “Exempt Issuance” shall mean the issuance of (a) shares of Common Stock or other securities to officers or directors of the Company pursuant to any stock or option or similar equity incentive plan duly adopted for such purpose, by a majority of the non-employee members of the Company’s Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose in a manner which is consistent with the Company’s prior business practices; (b) securities issued pursuant to a merger, consolidation, acquisition or similar business combination approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; (c) securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution approved by a majority of the disinterested directors of the Company provided that any such securities are not convertible or exercisable into the Company’s Common Stock; or (d) securities issued with respect to which the Holder waives its rights in writing under this Section 3(d)(iv). “Person” and “Persons” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any governmental entity or any department or agency thereof.
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Dilutive Issuances. If the Company or any Subsidiary subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock Stock, in each case pursuant to an option or Common Stock Equivalents warrant, entitling any Person to acquire shares of Common Stock, Stock at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder of the Common Stock option or Common Stock Equivalents warrant so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, warrants or options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock Stock, warrants, or Common Stock Equivalents options are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock warrants, options, or Common Stock Equivalents pursuant to an option or warrant subject to this Section 5.35.3 (each a “Dilutive Issuance Notice Deadline”), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion exercise price and other pricing terms (such notice the “Dilutive Issuance Notice”). Notwithstanding anything in this Warrant to the contrary, each time the Company fails to provide a Dilutive Issuance Notice to the Holder by the applicable Dilutive Issuance Notice Deadline, the Company shall pay $50,000 in cash to the Holder within one (1) business day of Holder’s request in addition to all other remedies available to the Holder in the Transaction Documents. For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. Notwithstanding the foregoing, no adjustment will be made under this Section 5.3 in respect of an Exempt Issuance. An “Exempt Issuance” shall mean the issuance of (a) shares of Common Stock or other securities to officers, directors, or key consultants and/or service providers of the Company pursuant to any stock or option or similar equity incentive plan duly adopted for such purpose, by a majority of the non-employee members of the Company’s Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose in a manner which is consistent with the Company’s prior business practices; (b) securities issued pursuant to a merger, consolidation, acquisition or similar business combination approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; (c) securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution approved by a majority of the disinterested directors of the Company provided that any such securities are not convertible or exercisable into the Company’s Common Stock; or (d) securities issued with respect to which the Holder waives its rights in writing under this Section 5.3. “Person” and “Persons” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any governmental entity or any department or agency thereof.
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Dilutive Issuances. If In case the Company or any Subsidiary thereofshall issue, as applicable, at any time while this Warrant is outstanding, shall sell or grant to any option to purchasePerson, whether directly or sell or grant any right to re-price, by assumption in a merger or otherwise dispose of (but other than any Excluded Issuance), (A) rights, warrants, options, exchangeable securities or issue (or announce any offerconvertible securities entitling such Person to subscribe for, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to otherwise acquire shares of Common Stock, Stock (each referred to herein as “Rights”) at an effective a price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (if the holder Fair Market Value of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due on the Trading Day immediately prior to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive sale or grant, or (B) shares of Common Stock at an effective a price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date Fair Market Value of the Dilutive Issuance)Common Stock on the Trading Day immediately prior to such issuance, sale or grant, then the Exercise Price of each Class B Warrant in effect on the date of such issuance, sale or grant shall be reduced reduced, concurrently with such issuance, sale or grant, by multiplying such Exercise Price by a fraction, of which (x) the numerator is the number of shares of Common Stock outstanding on the Trading Day immediately prior to such issuance, sale or grant plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription, purchase or acquisition pursuant to such Rights, or so issued, would purchase at the Fair Market Value on the Trading Day immediately prior to the date of such issuance, sale or grant, and only reduced (y) the denominator shall be the number of shares of Common Stock outstanding on the Trading Day immediately prior to equal the Base Share date of such issuance, sale or grant plus the number of shares of Common Stock so offered for subscription, purchase or acquisition pursuant to such Rights, or so issued; provided, however, that in the case of any Rights issued or granted to all holders of Common Stock that expire by their terms not more than 60 days after the date of issue or grant thereof, no adjustment of the Exercise Price of the Class B Warrants shall be made until the expiration or exercise of all such Rights whereupon such adjustment shall be made in the manner provided in this Section 13(e); provided, further, that no adjustment under Section 13 shall be made in connection with a distribution of “poison pill” rights pursuant to a shareholder rights plan so long as the Company shall, in lieu of making any adjustment pursuant to this Section 13, make proper provision so that each holder who exercises a Class B Warrant after the record date for such distribution and prior to the expiration or redemption of all such rights shall be entitled to receive upon such exercise, in addition to the shares of Common Stock issuable upon such exercise, such number of rights that would have been issued on account of such shares of Common Stock if such shares had been outstanding at the time such rights were distributed. If the Exercise Price of a Class B Warrant is adjusted as hereinabove provided, the number of shares of Common Stock issuable upon exercise of such Class B Warrant shall be correspondingly increased by dividing it by the same fraction. If any such Rights are not exercised prior to the expiration thereof, the Exercise Price of a Class B Warrant and the number of shares of Common Stock issuable upon exercise of such Class B Warrant shall be immediately readjusted, effective as of the date such Rights expire, to the Exercise Price and the number of shares of Common Stock issuable upon exercise of such Class B Warrant Shares issuable hereunder shall be increased such that would have been in effect if the Aggregate Exercise Price Payable hereunderunexercised Rights had never been issued, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustmentsold or granted. Such adjustment shall be made successively whenever any such Common Stock event shall occur. For the purposes of this paragraph, the aggregate of the offering price received or Common Stock Equivalents are issuedto be received by the Company shall include the maximum aggregate amount (if any) payable upon exercise or conversion of such Rights. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance value of any Common Stock consideration received or Common Stock Equivalents subject to this Section 5.3be received by the Company, indicating therein if other than cash, shall be reasonably determined by the applicable issuance price, Board in good faith on the basis of such information as it considers appropriate (without regard to any illiquidity or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”minority discounts). For purposes of clarification, whether determining the price at which the Rights or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price Common Stock in the Notice of Exercise.clause (A) or
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Samples: Warrant Agreement (Primus Telecommunications Group Inc)
Dilutive Issuances. The Exercise Price shall be subject to adjustment from time to time as follows:
(A) If the Company shall issue, after the Warrant Issue Date, any Additional Stock (as defined below) without consideration or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or sell or grant any right to re-price, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price for a consideration per share less than the then Unit Purchase Price (as defined in the Unit Purchase Agreement) in effect immediately prior to the issuance of such Additional Stock, the Exercise Price in effect immediately prior to each such issuance shall forthwith (except as otherwise provided in this clause (i)) be adjusted to a price equal to the price paid per share for such lower priceAdditional Stock [plus ten percent (10%)]; provided, however that the Exercise Price shall not be adjusted to a price below $0.10 (as adjusted for stock splits, stock dividends, combinations, recapitalizations or like changes in the Company's capital structure).
(B) In the case of the issuance of Common Stock for cash, the “Base Share Price” consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the Company for any underwriting or otherwise in connection with the issuance and such issuances collectively, a “Dilutive Issuance”sale thereof.
(C) (if In the holder case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined by the Board of Directors irrespective of any accounting treatment.
(D) In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of options to purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with to subscribe for such issuanceconvertible or exchangeable securities, be entitled to receive the following provisions shall apply for all purposes of this subsection 8(c)(i) and subsection 8(c)(ii):
(1) The number of shares of Common Stock at an effective price per share which is less than deliverable upon exercise (to the Exercise Price, extent then exercisable) of such issuance options to purchase or rights to subscribe for Common Stock shall be deemed to have occurred been issued at the time such options or rights were issued and for less than a consideration equal to the consideration (determined in the manner provided in subsections 8(c)(i)(B) and 8(c)(i)(C)), if any, received by the Company upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights for the Common Stock covered thereby.
(2) The number of shares of Common Stock deliverable upon conversion of, or in exchange (to the extent then convertible or exchangeable) for, any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the Company for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the Company upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in subsections 8(c)(i)(B) and (c)(i)(C)).
(3) In the event of any change in the consideration payable to the Company upon exercise of such options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited to, a change resulting from the antidilution provisions thereof, the Exercise Price on Price, to the extent in any way affected by such date options, rights or securities, shall be recomputed to reflect such change, but no further adjustment shall be made for the actual issuance of Common Stock or any payment of such consideration upon the exercise of any such options or rights or the conversion or exchange of such securities.
(4) Upon the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities without the exercise, conversion or exchange of any of the Dilutive Issuance)foregoing into Common Stock, then the Exercise Price shall be reduced and only reduced recomputed to equal reflect the Base Share Price assumption that none of such options, rights, or convertible or exchangeable securities had ever been issued.
(5) The Common Stock deemed issued and the number of Warrant Shares issuable hereunder consideration deemed paid therefor pursuant to subsections 8(c)(i)(D)( 1) and (2) shall be increased such that appropriately adjusted to reflect any change, termination or expiration of the Aggregate Exercise Price Payable hereunder, after taking into account the decrease type described in the Exercise Price, shall be equal to the Aggregate Exercise Price Prior to such adjustment. Such adjustment shall be made whenever such Common Stock either subsection 8(c)(i)(D)(3) or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”4). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.
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Dilutive Issuances. If the Company shall issue or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell or grant any option to purchasesell, or sell is, in accordance with subsections (b)(i) through (viii) below, deemed to have issued or grant any right to re-price, or otherwise dispose of or issue sold (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at an effective price per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectivelyeach, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at ), any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive additional shares of Common Stock, other than Excluded Stock at an effective price (the “New Issuance Shares”), without consideration or for a consideration per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price in effect immediately prior to the time of such issue or sale (the lowest price at which such shares of Common Stock are issued or deemed to be issued hereunder is hereinafter referred to as the “New Issuance Price”), then and in each such case (a “Trigger Issuance”) the then-existing Warrant Share Exercise Price, shall be reduced, as of the close of business on such the effective date of the Dilutive Trigger Issuance), then to a price determined in accordance with the immediately succeeding paragraphs. Prior to stockholder approval of the Stockholder Proposals, the Warrant Share Exercise Price shall be reduced and only reduced to equal the Base Share Price and the number of Warrant Shares issuable hereunder shall be increased such that the Aggregate Exercise Price Payable hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise higher of (i) the New Issuance Price Prior to such adjustment. Such adjustment shall be made whenever such or (ii) $0.76 (appropriately adjusted for any stock split, reverse stock split, stock dividend or other reclassification or combination of the Common Stock or Common Stock Equivalents are issued. The Company shall notify occurring after the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms date hereof) (such notice the “Dilutive Issuance NoticeFull-Ratchet Floor Price”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the occurrence of any Dilutive Issuance, From and after the date of stockholder approval of the Stockholder Proposals, if any, the Warrant Share Exercise Price shall be reduced to the New Issuance Price. In the event that in the time period prior to such stockholder approval a Dilutive Issuance is made and the Holder Warrant Share Exercise Price is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers adjusted to the Base Full-Ratchet Floor Price instead of the New Issuance Price, then immediately following such stockholder approval, the Warrant Share Exercise Price in shall be adjusted to such New Issuance Price if such New Issuance Price is lower than the Notice of Exercisethen current Warrant Share Exercise Price.
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