Exchange Cap. The Company shall not issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Notes or otherwise pursuant to the terms of this Note without breaching the Company’s obligations under the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations, including rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock upon conversion of the Notes or otherwise pursuant to the terms of this Note in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder. Until such approval or such written opinion is obtained, no Buyer shall be issued in the aggregate, upon conversion of any Notes or otherwise pursuant to the terms of this Note, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap multiplied by (ii) the quotient of (A) the aggregate original principal amount of Notes issued to such Buyer pursuant to the Securities Purchase Agreement on the Closing Date divided by (B) the aggregate original principal amount of all Notes issued to the Buyers pursuant to the Securities Purchase Agreement on the Closing Date (with respect to each Buyer, the “Exchange Cap Allocation”). In the event that any Buyer shall sell or otherwise transfer any of such Buyer’s Notes, the transferee shall be allocated a pro rata portion of such Buyer’s Exchange Cap Allocation with respect to such portion of such Notes so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon conversion in full of a holder’s Notes, the difference (if any) between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder’s conversion in full of such holder’s Notes shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes on a pro rata basis in proportion to the shares of Common Stock underlying the Notes then held by each such holder. In the event that the Company is prohibited from issuing shares of Common Stock pursuant to this Section 3(d)(ii) (the “Exchange Cap Shares”) after the date that is 80 calendar days following the Issuance Date, the Company shall pay cash in exchange for the cancellation of such shares of Common Stock at a price equal to the sum of (i) the product of (x) such number of Exchange Cap Shares and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable Conversion Notice with respect to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this Section 3(d)(ii) and (ii) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to the applicable Share Delivery Deadline.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rock Creek Pharmaceuticals, Inc.)
Exchange Cap. The Company shall not issue any shares of Common Stock upon conversion the exercise of this Note or otherwise pursuant to the terms of this Note Warrant if the issuance of such shares of Common Stock taken together with each prior issuance of Conversion Shares (as defined in the Purchase Agreement) and any prior issuance of shares of Common Stock upon exercise of the Warrants, collectively, would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Notes or otherwise pursuant to exercise of the terms of this Note Warrants without breaching the Company’s obligations under the rules or regulations of the Principal Market (as defined in the Notes) (the number of shares of Common Stock which may be issued without violating such rules and regulations, including rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock upon conversion of the Notes or otherwise pursuant to the terms of this Note in excess of such amount Shareholder Approval or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder. Until such approval or such written opinion is obtained, no Buyer holder of Warrants (each, a “Warrant Holder”) shall be issued in the aggregate, upon conversion or exercise (as the case may be) of any Notes or any of the Warrants or otherwise pursuant to the terms of this Notethe Notes or the Warrants, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap as of the Initial Exercise Date multiplied by (ii) the quotient of (A1) the aggregate original principal amount of Notes issued to such Buyer pursuant to the Securities Purchase Agreement on the Closing Date Warrant Holder divided by (B2) the aggregate original principal amount of all Notes issued to the Buyers Purchasers pursuant to the Securities Purchase Agreement on the Closing Date (with respect to each BuyerWarrant Holder, the “Exchange Cap Allocation”). In the event that any Buyer Warrant Holder shall sell or otherwise transfer any of such BuyerWarrant Holder’s NotesWarrants, the transferee shall be allocated a pro rata portion of such BuyerWarrant Holder’s Exchange Cap Allocation with respect to such portion of such Notes Warrants so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon conversion and exercise in full of a holderWarrant Holder’s NotesNotes and Warrants, the difference (if any) between such holderWarrant Holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder Warrant Holder upon such holderWarrant Holder’s conversion in full of such holder’s Notes and exercise in full of such Warrants shall be allocated allocated, to the respective Exchange Cap Allocations of the remaining holders of Notes and Warrants on a pro rata basis in proportion to the shares of Common Stock underlying the Notes and Warrants then held by each such holderholder of Notes and Warrants. In If, due to the event that Company’s failure to obtain Shareholder Approval, the Company is prohibited from issuing any shares of Common Stock pursuant to this Section 3(d)(ii2(f) (the “Exchange Cap Shares”) after the date that is 80 calendar days following the Issuance Date), the Company shall pay cash in exchange for the cancellation of such shares portion of Common Stock this Warrant exercisable into such Exchange Cap Shares (the “Exchange Cap Payment Amount”) at a price equal to the sum of (ix) the product of (xA) such number of Exchange Cap Shares and (yB) the greatest Closing Sale Price (as defined in the Notes) of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable Conversion Notice of Exercise with respect to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this Section 3(d)(ii2(f) and (iiy) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment Amountamount (as defined in Section 2(d)(iv)), any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Shares Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to the applicable Share Delivery Deadline.
Appears in 1 contract
Samples: Security Agreement (Esports Entertainment Group, Inc.)
Exchange Cap. The Notwithstanding anything to the contrary set forth in this Warrant, the Company shall not be obligated to issue any shares of Common Stock upon conversion exercise of this Note or otherwise pursuant to Warrant, and the terms holder of this Note Warrant shall not have the right to receive upon exercise of any shares of this Warrant, if the issuance of such shares of Common Stock would exceed the aggregate number of shares Shares of Common Stock which the Company may issue upon conversion of the Notes exercise or otherwise pursuant to the terms conversion, as applicable, of this Note Warrant and the Agreement Warrants without breaching the Company’s 's obligations under the rules or regulations of the Principal Market (Nasdaq, which aggregate number equals 19.99% of the number of shares which may be issued without violating such rules and regulations, including rules related to outstanding on the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, Closing Date (the “"Exchange Cap”"), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market Nasdaq for issuances of shares of Common Stock upon conversion of the Notes or otherwise pursuant to the terms of this Note in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the HolderRequired Holders. Until such approval or such written opinion is obtained, no Buyer none of the Holders shall be issued in the aggregate, upon conversion of any Notes or otherwise pursuant to the terms exercise of this NoteWarrant or the Agreement Warrants, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap multiplied by (ii) a fraction, the quotient numerator of (A) which is the aggregate original principal total amount of Notes issued to such Buyer pursuant shares of Common Stock issuable to the Securities Purchase Agreement on Holder upon exercise of this Warrant and the Closing Date divided by (B) denominator of which is the aggregate original principal total amount of shares of Common Stock issuable to all Notes issued to Holders upon exercise of this Warrant and the Buyers pursuant to the Securities Purchase Agreement on the Closing Date Warrants (with respect to each BuyerHolder, the “"Exchange Cap Allocation”"). In the event that any Buyer Holder shall sell or otherwise transfer any of such BuyerHolder’s NotesWarrant, the transferee shall be allocated a pro rata portion of such BuyerHolder’s Exchange Cap Allocation with respect to such portion of such Notes so transferredAllocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon conversion In the event that any holder of this Warrant shall exercise all of such holder's Warrant into a number of shares of Common Stock which, in full of a the aggregate, is less than such holder’s Notes's Exchange Cap Allocation, then the difference (if any) between such holder’s 's Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder’s conversion in full of such holder’s Notes shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes this Warrant on a pro rata basis in proportion to the aggregate exercise price of shares of Common Stock underlying the Notes this Warrant then held by each such holder. In the event that the Company is prohibited from issuing shares of Common Stock pursuant to this Section 3(d)(ii) (the “Exchange Cap Shares”) after the date that is 80 calendar days following the Issuance Date, the Company shall pay cash in exchange for the cancellation of such shares of Common Stock at a price equal to the sum of (i) the product of (x) such number of Exchange Cap Shares and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable Conversion Notice with respect to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this Section 3(d)(ii) and (ii) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to the applicable Share Delivery Deadline.
Appears in 1 contract
Exchange Cap. The Company shall not issue any shares of Common Stock upon conversion exercise of this Note Warrant or otherwise pursuant to the terms of this Note Warrant if the issuance of such shares of Common Stock (after taking into account the issuance of Common Stock upon conversion of the Debentures issued pursuant to the terms of the Securities Purchase Agreement) would exceed the aggregate number of shares of Common Stock which that the Company may issue upon conversion pursuant to the Debentures and exercise of the Notes Warrants or otherwise pursuant to the terms of this Note the Debentures or Warrants without breaching the Company’s obligations under the rules or and regulations of the Principal Trading Market (the number of shares which may be issued without violating such rules and regulations, including rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Trading Market for issuances of shares of Common Stock upon conversion of the Notes or otherwise pursuant to the terms of this Note in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holderamount. Until such approval or such written opinion is obtained, no Buyer shall the aggregate maximum number of shares of Common Stock that all Holders may be issued in the aggregate, upon exercise of any Warrants (after taking into account Common Stock issuable upon conversion of any Notes or otherwise the Debentures issued pursuant to the terms of this Note, the Purchase Agreement) or any other issuance pursuant to the terms of the Warrants shall not exceed the Exchange Cap and the Holder shall not be issued any shares of Common Stock pursuant to the terms of the Warrants or Debentures held by it in an amount greater than the product of (i) the Exchange Cap multiplied by (ii) the quotient of (A) the aggregate original principal amount of Notes issued to such Buyer pursuant to the Securities Purchase Agreement on the Closing Date divided by (B) the aggregate original principal amount of all Notes issued to the Buyers pursuant to the Securities Purchase Agreement on the Closing Date (with respect to each Buyer, the “Exchange Cap Allocation”). In the event that any Buyer shall sell or otherwise transfer any of such Buyer’s Notes, the transferee shall be allocated a pro rata portion of such Buyer’s its Exchange Cap Allocation with respect to such portion of such Notes so transferred, and (as defined in the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon conversion in full of a holder’s Notes, the difference (if any) between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder’s conversion in full of such holder’s Notes shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes on a pro rata basis in proportion to the shares of Common Stock underlying the Notes then held by each such holderDebentures). In the event that the Company is prohibited from issuing shares of Common Stock pursuant to this Section 3(d)(ii3(f) (the “Exchange Cap Shares”) after the date that is 80 calendar days following the Issuance Date), the Company shall pay cash in exchange for the cancellation of such shares of Common Stock Exchange Cap Shares at a price equal to the sum of (i) the product of (x) such number of Exchange Cap Shares and (y) the greatest Closing Sale Price last closing sale price of the Common Stock on any Trading Day during the period commencing Principal Market (as reported by Bloomberg) on the date the Holder delivers the applicable Conversion Notice of Exercise with respect to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this Section 3(d)(ii) and (ii) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to the applicable Share Delivery DeadlineCompany.
Appears in 1 contract
Samples: Security Agreement (JRjr33, Inc.)
Exchange Cap. The Company shall hereby agrees not issue any shares of Common Stock upon conversion the exercise of this Note or otherwise pursuant to the terms of this Note if the issuance of such shares of Common Stock would exceed 14,747,065 shares of Common Stock (19.99% of the shares of Common Stock outstanding as of as of the date hereof), which is the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Notes or otherwise pursuant to the terms of this Note without breaching the Company’s obligations under the rules or regulations of the Nasdaq Capital Market (the “Principal Market Market”) (the number of shares which may be issued without violating such rules and regulations, including rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock upon conversion of the Notes or otherwise pursuant to the terms of this Note in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder. Until such approval or such written opinion is obtained, no Buyer the Holder (together with any subsequent holder of any of the Note, collectively, the “Buyers” and each a “Buyer”) shall be issued in the aggregate, upon conversion exercise of any Notes or otherwise pursuant to of the terms of this Note, Note shares of Common Stock in an amount greater than the product of (i) the Exchange Cap as of the Issuance Date multiplied by (ii) the quotient of (A1) the aggregate original principal amount number of Notes issued to such Buyer shares of Common Stock initially exercisable pursuant to the Securities Purchase Agreement Note held by such Buyer without regard for any limitations on exercise set forth therein (as measured as of the Closing Date (as defined in the Securities Purchase Agreement)) divided by (B2) the aggregate original principal amount number of all Notes issued to the Buyers shares of Common Stock initially exercisable pursuant to the Securities Purchase Agreement Note held by all Buyers without regard to any limitations on exercise set forth therein (as measured as of the Closing Date Date) (with respect to each Buyer, the “Exchange Cap Allocation”). In the event that any Buyer shall sell or otherwise transfer any of such Buyer’s NotesNote, the transferee shall be allocated a pro rata portion of such Buyer’s Exchange Cap Allocation with respect to such portion of such Notes Note so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon conversion exercise in full of a holder’s Notesthe Note, the difference (if any) between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder’s conversion exercise in full of such holder’s Notes Note shall be allocated allocated, to the respective Exchange Cap Allocations of the remaining holders of Notes Note on a pro rata basis in proportion to the shares of Common Stock underlying the Notes Note then held by each such holderholder of Note. In the event that after the Stockholder Meeting Deadline (as defined in the Amendment) the Company is then prohibited from issuing any shares of Common Stock pursuant to this Section 3(d)(ii) paragraph (the “Exchange Cap Shares”) after ), in lieu of issuing and delivering such Exchange Cap Shares to the date that is 80 calendar days following the Issuance DateHolder, the Company shall pay cash to the Holder in exchange for the cancellation of such shares portion of Common Stock this Warrant exercisable into such Exchange Cap Shares (the “Exchange Cap Payment Amount”) at a price equal to the sum of (ix) the product of (xA) such number of Exchange Cap Shares and (yB) the greatest Closing Sale Price (as defined in the Note) of the Common Stock on any Trading Day (as defined in the Note) during the period commencing on the date the Holder delivers the applicable Conversion Exercise Notice (as defined in the Note) with respect to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this Section 3(d)(ii) paragraph and (iiy) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to the applicable Share Delivery Deadlinetherewith.
Appears in 1 contract
Samples: Securities Purchase Agreement (Verb Technology Company, Inc.)
Exchange Cap. The Notwithstanding anything to the contrary set forth in this Warrant, the Company shall not be obligated to issue any Ordinary Shares upon exercise of this Warrant, and the holder of this Warrant shall not have the right to receive upon exercise of any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note Warrant, if the issuance of such shares of Common Stock Ordinary Shares would exceed the aggregate number of shares of Common Stock Ordinary Shares which the Company may issue upon conversion of the Notes exercise or otherwise pursuant to the terms conversion, as applicable, of this Note Warrant and the Agreement Warrants without breaching the Company’s 's obligations under the rules or regulations of the Principal Market (Nasdaq, which aggregate number equals 19.99% of the number of shares which may be issued without violating such rules and regulations, including rules related to outstanding on the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, Closing Date (the “"Exchange Cap”"), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market Nasdaq for issuances of shares of Common Stock upon conversion of the Notes or otherwise pursuant to the terms of this Note Ordinary Share in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the HolderRequired Holders. Until such approval or such written opinion is obtained, no Buyer none of the Holders shall be issued in the aggregate, upon conversion of any Notes or otherwise pursuant to the terms exercise of this NoteWarrant or the Agreement Warrants, shares of Common Stock Ordinary Shares in an amount greater than the product of (i) the Exchange Cap multiplied by (ii) a fraction, the quotient numerator of (A) which is the aggregate original principal total amount of Notes issued to such Buyer pursuant Ordinary Shares issuable to the Securities Purchase Agreement on Holder upon exercise of this Warrant and the Closing Date divided by (B) denominator of which is the aggregate original principal total amount of Ordinary Shares issuable to all Notes issued to Holders upon exercise of this Warrant and the Buyers pursuant to the Securities Purchase Agreement on the Closing Date Warrants (with respect to each BuyerHolder, the “"Exchange Cap Allocation”"). In the event that any Buyer Holder shall sell or otherwise transfer any of such BuyerHolder’s NotesWarrant, the transferee shall be allocated a pro rata portion of such BuyerHolder’s Exchange Cap Allocation with respect to such portion of such Notes so transferredAllocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon conversion In the event that any holder of this Warrant shall exercise all of such holder's Warrant into a number of Ordinary Shares which, in full of a the aggregate, is less than such holder’s Notes's Exchange Cap Allocation, then the difference (if any) between such holder’s 's Exchange Cap Allocation and the number of shares of Common Stock Ordinary Shares actually issued to such holder upon such holder’s conversion in full of such holder’s Notes shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes this Warrant on a pro rata basis in proportion to the aggregate exercise price of shares of Common Stock underlying the Notes this Warrant then held by each such holder. In the event that the Company is prohibited from issuing shares of Common Stock pursuant to this Section 3(d)(ii) (the “Exchange Cap Shares”) after the date that is 80 calendar days following the Issuance Date, the Company shall pay cash in exchange for the cancellation of such shares of Common Stock at a price equal to the sum of (i) the product of (x) such number of Exchange Cap Shares and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable Conversion Notice with respect to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this Section 3(d)(ii) and (ii) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to the applicable Share Delivery Deadline.
Appears in 1 contract
Samples: Ordinary Share Purchase Warrant (Delta Technology Holdings LTD)
Exchange Cap. The Company shall (a) Notwithstanding the foregoing provision, the Issuers will not issue any be entitled to deliver shares of Common Stock upon conversion of this Note to a Person or otherwise pursuant any Affiliate thereof (other than any Permitted Holder) that beneficially owns the Notes to the terms extent (but only to the extent) that such receipt would cause such Person or any Affiliate thereof to become, directly or indirectly, a “beneficial owner” (within the meaning of this Note if Section 13(d) of the issuance Exchange Act and the rules and regulations promulgated thereunder) of such more than 19.9% of the shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Notes or otherwise pursuant to the terms of this Note without breaching the Company’s obligations under the rules or regulations of the Principal Market outstanding at such time (the number of shares which may be issued without violating such rules and regulations, including rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, the “Exchange Cap”). Each beneficial owner shall, except that upon delivery of the relevant exchange notice, give notice to the Issuers of each such limitation beneficial owner’s ownership of Common Stock and each beneficial owner agrees to furnish to the Issuers any information reasonably requested by the Issuers in connection with the calculation of the Exchange Cap. The Issuers and the Exchange Agent shall be entitled to rely upon such information. The Issuers shall not apply be in breach of any provision of this Indenture or the event that Notes with respect to the Company Common Stock issued in reliance on such information and shall have no liability (Aand shall be indemnified for any liability) obtains the approval of its stockholders as required by the applicable rules a result of the Principal Market for issuances issuance of any shares of Common Stock to any holder in excess of the Exchange Cap issued in reliance on such information.
(b) Any purported delivery of shares of Common Stock upon conversion exchange of the Notes or otherwise pursuant to the terms of this Note in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder. Until such approval or such written opinion is obtained, no Buyer shall be issued in the aggregate, upon conversion of any Notes or otherwise pursuant to the terms of this Note, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap multiplied by (ii) the quotient of (A) the aggregate original principal amount of Notes issued to such Buyer pursuant to the Securities Purchase Agreement on the Closing Date divided by (B) the aggregate original principal amount of all Notes issued to the Buyers pursuant to the Securities Purchase Agreement on the Closing Date (with respect to each Buyer, the “Exchange Cap Allocation”). In the event that any Buyer shall sell or otherwise transfer any of such Buyer’s Notes, the transferee shall be allocated a pro rata portion of such Buyer’s Exchange Cap Allocation with respect to such portion of such Notes so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon conversion in full of a holder’s Notes, the difference (if any) between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder’s conversion in full of such holder’s Notes shall be allocated void and have no effect to the respective Exchange Cap Allocations extent (but only to the extent) that such delivery would result in any Person or any Affiliate thereof (other than a Permitted Holder) becoming the beneficial owner of the remaining holders more than 19.9% of Notes on a pro rata basis in proportion to the shares of Common Stock underlying outstanding at such time. If the Notes then held by each such holder. In Issuers elect to satisfy the event that the Company is prohibited from issuing Exchange Obligation in shares of Common Stock pursuant to this Section 3(d)(ii) (but have been notified by an exchanging Holder that the “Exchange Cap Shares”) after the date that is 80 calendar days following the Issuance Datewould be exceeded, the Company shall pay cash Issuers may settle the Exchange Obligation in exchange Common Stock for the cancellation portion of such shares the principal amount (in integral multiples of Common Stock at a price $1,000) that would not cause the Exchange Cap to be exceeded. The Issuers will settle each remaining $1,000 principal amount of Notes exchanged for cash equal to the sum of (i) the product of (x) such number of Exchange Cap Shares and (y) the greatest Closing Sale Price Daily Settlement Value for each of the Common Stock on any 25 Trading Day Days during the period commencing on related Observation Period in the date the Holder delivers the applicable Conversion Notice with respect to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this manner provided in Section 3(d)(ii) and (ii) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to the applicable Share Delivery Deadline1304.
Appears in 1 contract
Samples: Indenture (Clearwire Corp /DE)
Exchange Cap. The Company shall not issue any shares of Common Stock upon conversion the exercise of this Note or otherwise pursuant to the terms of this Note Warrant if the issuance of such shares of Common Stock taken together with each prior issuance of Common Shares (as defined in the Securities Purchase Agreement) under the Securities Purchase Agreement and any prior issuance of shares of Common Stock upon exercise of the SPA Warrants, collectively, would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Notes or otherwise pursuant to the terms of this Note without breaching the Company’s obligations under the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations, including rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock upon conversion of the Notes or otherwise pursuant to the terms of this Note in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder. Until such approval or such written opinion is obtained, no Buyer holder of Warrants (each, a “SPA Warrant Holder”) shall be issued in the aggregate, upon conversion exercise of any Notes or otherwise pursuant to of the terms of this NoteSPA Warrants, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap as of the Issuance Date multiplied by (ii) the quotient of (A1) the aggregate original principal amount number of Notes Common Shares issued to such Buyer pursuant to SPA Warrant Holder as of the Closing Date (as defined in the Securities Purchase Agreement on the Closing Date Agreement) divided by (B2) the aggregate original principal amount number of all Notes Common Shares issued to the Buyers pursuant to the Securities Purchase Agreement on SPA Warrant Holders as of the Closing Date (with respect to each BuyerSPA Warrant Holder, the “Exchange Cap Allocation”); provided, that the Exchange Cap Allocation shall be allocated among the Holder’s SPA Warrants (unless the Company and the Holder mutually agree otherwise) as follows: first, to any shares of Common Stock issued or issuable under the Series C Warrants (without regards to any limitations on exercise set forth in Section 1(f)(i) thereof), second, to any shares of Common Stock issued or issuable under the Series B-1 Warrants (without regards to any limitations on exercise set forth in Section 1(f)(i) thereof), third, to any shares of Common Stock issued or issuable under the Series B-2 Warrants (without regards to any limitations on exercise set forth in Section 1(f)(i) thereof) and fourth, to any shares of Common Stock issued or issuable under the Series A Warrants (without regards to any limitations on exercise set forth in Section 1(f)(i) thereof). In the event that any Buyer SPA Warrant Holder shall sell or otherwise transfer any of such BuyerSPA Warrant Holder’s NotesSPA Warrants, the transferee shall be allocated a pro rata portion of such BuyerSPA Warrant Holder’s Exchange Cap Allocation with respect to such portion of such Notes SPA Warrants so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon conversion exercise in full of a holderan SPA Warrant Holder’s NotesWarrants, the difference (if any) between such holderSPA Warrant Holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder SPA Warrant Holder upon such holderSPA Warrant Holder’s conversion exercise in full of such holder’s Notes SPA Warrants shall be allocated allocated, to the respective Exchange Cap Allocations of the remaining holders SPA Warrant Holders of Notes SPA Warrants on a pro rata basis in proportion to the shares of Common Stock underlying the Notes SPA Warrants then held by each such holderSPA Warrant Holder of SPA Warrants. In the event that the Company is then prohibited from issuing any shares of Common Stock pursuant to this Section 3(d)(ii1(f)(ii) (the “Exchange Cap Shares”) after ), in lieu of issuing and delivering such Exchange Cap Shares to the date that is 80 calendar days following the Issuance DateHolder, the Company shall pay cash to the Holder in exchange for the cancellation of such shares portion of Common Stock this Warrant exercisable into such Exchange Cap Shares (the “Exchange Cap Payment Amount”) at a price equal to the sum of (ix) the product of (xA) such number of Exchange Cap Shares and (yB) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable Conversion Exercise Notice with respect to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this Section 3(d)(ii1(f)(ii) (“Exchange Cap Price”) and (iiy) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to the applicable Share Delivery Deadlinetherewith.
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