Future Equity Issuances. (a) If the Company engages or participates in (or intends to engage or participate in) any discussions with any Person regarding any sale or issuance to any Person (other than Purchaser or its affiliates) of any shares of, or securities convertible into, exercisable or exchangeable for, or whose value is derived in whole or in part from, any shares of any class of the Company's capital stock at a Later Issuance Price (as defined below) less than the Initial Investment Price, Later Investment Price or Warrant Price (as defined in the Warrant), as the case may be, subsequent to any Closing Date or the closing of any exercise of any Warrant, other than an Excluded Issuance (a "Future Equity Issuance"), the Company shall promptly notify Purchaser that the Company intends to effect a Future Equity Issuance. If, within two (2) Business Days after and excluding the date of receipt of such notice, Purchaser notifies the Company in writing that Purchaser would like to be informed of the terms and conditions of such Future Equity Issuance, then the Company shall promptly provide Purchaser with a written description of the terms and conditions of such proposed Future Equity Issuance, including a description of the capital stock to be sold or issued, the investor or investors in the Future Equity Issuance, the price, the quantity and all other information reasonably necessary for Purchaser to make an informed decision on whether it desires to participate in the Future Equity Issuance (the "Future Equity Issuance Description "). If Purchaser notifies the Company in writing that Purchaser elects to purchase all or a portion of the capital stock that the Company intends to sell or issue in the Future Equity Issuance (which election shall include the number of shares of such capital stock that Purchaser intends to purchase) by 11:59 p.m., New York City time, on the fifth (5th) Business Day after and excluding the date of the Future Equity Issuance Description, then the Company shall not consummate such Future Equity Issuance without selling Purchaser the capital stock that it elected to purchase at or prior to the consummation of such Future Equity Issuance or promptly thereafter at a closing date and place established prior to such consummation, which purchase shall be at the price and on the other terms and conditions of the Future Equity Issuance. If Purchaser does not elect to receive a Future Equity Issuance Description with respect to a Future Equity Issuance, then promptly, and no later than one (1) Business Day after and excluding, the date of announcement of such Future Equity Issuance (or, if such Future Equity Issuance is not required to be publicly announced, the date of closing of such Future Equity Issuance), the Company shall provide Purchaser with a written description of the material terms of such Future Equity Issuance.
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Future Equity Issuances. (a) If the Company engages or participates in (or intends to engage or participate in) any discussions discussion with any Person regarding any sale or issuance to any Person (other than Purchaser or its affiliates) of any shares of, or securities convertible into, exercisable or exchangeable for, or whose value is derived in whole or in part from, any shares of any class of the Company's capital stock at a Later Issuance Price (as defined below) less than the Initial Investment Price, Later Investment Price or Warrant Price (as defined in the Warrant), as the case may be, subsequent to any Closing Date or the closing of any exercise of any Warrantstock, other than an Excluded Issuance (a "Future Equity Issuance"), the Company shall (i) promptly notify Purchaser that of the Company intends existence of Company's intentions or discussions with respect to effect a the proposed Future Equity Issuance. If, within two Issuance and (2ii) Business Days after and excluding the date of receipt of in connection with such notice, inquire whether Purchaser notifies the Company in writing that Purchaser would like desires to be informed of as to the terms and conditions substance of such Future Equity Issuance, then the Company shall promptly provide Purchaser with a written description of the terms and conditions of such proposed Future Equity Issuance, including a description of the capital stock to be sold intentions or issued, the investor or investors in the Future Equity Issuance, the price, the quantity and all other information reasonably necessary for Purchaser to make an informed decision on whether it desires to participate in the Future Equity Issuance (the "Future Equity Issuance Description ")discussions. If Purchaser notifies the Company in writing that Purchaser elects to purchase all or a portion of the capital stock that the Company intends become informed with respect to sell or issue in the such proposed Future Equity Issuance (which election shall include the number of shares of such capital stock that Purchaser intends to purchase) by 11:59 p.m., New York City time, on the fifth third (5th3rd) Business Day after and excluding the date of on which Company so notifies Purchaser, Company shall use its best efforts to engage in good faith discussions with Purchaser regarding the proposed Future Equity Issuance Description, then the Company and shall not consummate such Future Equity Issuance without selling for five (5) full Business Days after and excluding the date of Purchaser's election. For purposes of clarification, nothing in this Section 9(a) shall obligate Company to allow Purchaser the capital stock that it elected to purchase at or prior to participate in a Future Equity Issuance.
(b) Upon the consummation of such Future Equity Issuance or promptly thereafter at a closing date and place established prior to such consummation, which purchase shall be at the price and on the other terms and conditions of the any Future Equity Issuance. If Purchaser does not elect , the Warrant Price (as defined in the Warrant) shall automatically be reduced to receive equal the lesser of (A) the Warrant Price as then in effect and (B) the Later Issuance Price.
(c) If, at any time within one (1) year following any Closing Date or the closing of any exercise of the Warrant (each, a Future Equity Issuance Description with respect "Diluted Investment Closing"), there is (i) a public disclosure of Company's intention or agreement to engage in a Future Equity Issuance, or (ii) a consummation of a Future Equity Issuance, in each case at a price per share below the purchase price or exercise price per share paid (or deemed paid in the case of a Share Quarterly Payment or Cashless Exercise (as defined in the Warrant)) by Purchaser for the Common Shares acquired at such Diluted Investment Closing, then promptly, and no later than one in any case within three (3) Business Days, following such disclosure or consummation, Company shall issue and deliver a number of shares of Common Stock to Purchaser equal to the positive difference, if any, with respect to each Diluted Investment Closing, between (x) the quotient of (1) Business Day after and excluding, the date aggregate purchase price or aggregate exercise price paid (or deemed to have been paid in the case of announcement of such Future Equity Issuance a Share Quarterly Payment or Cashless Exercise (or, if such Future Equity Issuance is not required to be publicly announced, as defined in the date of closing of such Future Equity IssuanceWarrant), the Company shall provide ) by Purchaser with a written description respect to such Diluted Investment Closing divided by (2) the Later Issuance Price (as defined below) and (y) the number of the material terms shares of Common Stock actually issued to Purchaser at such Future Equity IssuanceDiluted Investment Closing.
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Future Equity Issuances. (a) If For so long as the Purchaser (or any assignee or successor thereof) has the right to exercise the Warrant, and, provided the Purchaser continues to own Common Shares, for one (1) year thereafter (the "Future Equity Issuance Notice Period"), if the Company engages or participates in (or intends to engage or participate in) any discussions with any Person regarding any sale or issuance to any Person (other than Purchaser or its affiliates) of any shares of, or securities convertible into, exercisable or exchangeable for, or whose value is derived in whole or in part from, any shares of any class of the Company's capital stock at a Later Issuance Price (as defined below) less than the Initial Investment Price, Later Investment Price or Warrant Price (as defined in the Warrant), as the case may be, subsequent to any the Closing Date or the closing of any exercise of any the Warrant, other than an Excluded Issuance (a "Future Equity Issuance"), the Company shall (i) promptly notify Purchaser that of the Company intends existence of the Company's intentions or discussions with respect to effect a the proposed Future Equity Issuance. If, within two Issuance and (2ii) Business Days after and excluding the date of receipt of in connection with such notice, inquire whether Purchaser notifies the Company in writing that Purchaser would like desires to be informed of as to the terms and conditions substance of such Future Equity Issuance, then the Company shall promptly provide Purchaser with a written description of the terms and conditions of such proposed Future Equity Issuance, including a description of the capital stock to be sold intentions or issued, the investor or investors in the Future Equity Issuance, the price, the quantity and all other information reasonably necessary for Purchaser to make an informed decision on whether it desires to participate in the Future Equity Issuance (the "Future Equity Issuance Description ")discussions. If Purchaser notifies the Company in writing that Purchaser elects to purchase all or a portion of the capital stock that the Company intends become informed with respect to sell or issue in the such proposed Future Equity Issuance (which election shall include the number of shares of such capital stock that Purchaser intends to purchase) by 11:59 p.m., New York City time, on the fifth third (5th3rd) Business Day after and excluding the date of on which the Company so notifies Purchaser, the Company shall use its best efforts to engage in good faith discussions with Purchaser regarding the proposed Future Equity Issuance Description, then the Company and shall not consummate such Future Equity Issuance without selling for three (3) full Business Days after and excluding the date of Purchaser's election. For purposes of clarification, nothing in this subsection shall obligate the Company to allow Purchaser to participate in a Future Equity Issuance.
(b) If, during the capital stock that it elected to purchase at or prior to the consummation of such Future Equity Issuance or promptly thereafter at Notice Period, there is (x) a closing date and place established prior to such consummation, which purchase shall be at the price and on the other terms and conditions public disclosure of the Company's intention or agreement to engage in a Future Equity Issuance. If Purchaser does not elect to receive , or (y) a Future Equity Issuance Description with respect to consummation of a Future Equity Issuance, then promptlythe Company shall notify Purchaser and each Holder (as defined in the Warrant) of each such disclosure and each such consummation, which notice shall include a copy of such disclosure or the terms and date of such consummation (the "Equity Issuance Notice"), no later than one (1) Business Day after each such disclosure and excluding, each such consummation.
(c) On or after the date of announcement delivery of such an Equity Issuance Notice (or on or after the date on which a disclosure or consummation described in Section 9(b) has occurred that requires the Company to deliver an Equity Issuance Notice), then:
(i) Effective as of the date of delivery of an Equity Issuance Notice (or on or after the date on which a disclosure or consummation described in Section 9(b) has occurred that requires the Company to deliver an Equity Issuance Notice), the Warrant Price shall equal the lesser of the Later Issuance Price and the Warrant Price previously in effect; and
(ii) in the case of a Future Equity Issuance disclosed or consummated within one (or, if such Future Equity Issuance is not required to be publicly announced, 1) year following the date of Closing or any closing of such Future Equity Issuanceany exercise of the Warrant (the "Prior Period"), the Company shall provide promptly issue and deliver a number of shares of Common Stock to Purchaser (or with a written description respect to such Warrant exercise, to the Holder at the time of such exercise) equal to the positive difference, if any, with respect to the Closing Date and each closing of any exercise of such Warrant during the Prior Period, between (x) the quotient of (A) the Investment Amount with respect to such Investment or such Warrant exercise closing divided by (B) the Later Issuance Price and (y) the number of shares of Common Stock issued on the Closing Date or such Warrant exercise closing; provided, however, that the foregoing adjustment shall not be made with respect to any shares of Common Stock issued on the Closing Date or such Warrant exercise closing that were sold by Purchaser prior to the Future Equity Issuance (for purposes of determining which shares relate to which of the material terms Closing Date or which Warrant exercise closing, where the shares cannot be readily traced because held in uncertificated form or otherwise, Purchaser shall notify the Company of such Future Equity Issuanceallocation).
Appears in 1 contract
Samples: Purchase Agreement (Sanders Morris Harris Group Inc)
Future Equity Issuances. (a) If the Company engages or participates in (or intends to engage or participate in) any discussions discussion with any Person regarding any sale or issuance to any Person (other than Purchaser Xxxxxxxx or its affiliates) of any shares of, or securities convertible into, exercisable or exchangeable for, or whose value is derived in whole or in part from, any shares of any class of the Company's capital stock at a Later Issuance Price (as defined below) less than the Initial Investment Price, Later Investment Price or Warrant Price (as defined in the Warrant), as the case may be, subsequent to any Closing Date or the closing of any exercise of any Warrantstock, other than an Excluded Issuance (a "Future Equity Issuance"), the Issuance"),the Company shall (i) promptly notify Purchaser that Xxxxxxxx of the Company intends existence of Company's intentions or discussions with respect to effect a the proposed Future Equity Issuance. If, within two Issuance and (2ii) Business Days after and excluding the date of receipt of in connection with such notice, Purchaser inquire whether Xxxxxxxx desires to be informed as to the substance of such intentions or discussions. If Xxxxxxxx notifies the Company in writing that Purchaser would like Xxxxxxxx elects to be become informed of the terms and conditions of such Future Equity Issuance, then the Company shall promptly provide Purchaser with a written description of the terms and conditions of respect to such proposed Future Equity Issuance, including a description of the capital stock to be sold or issued, the investor or investors in the Future Equity Issuance, the price, the quantity and all other information reasonably necessary for Purchaser to make an informed decision on whether it desires to participate in the Future Equity Issuance (the "Future Equity Issuance Description "). If Purchaser notifies the Company in writing that Purchaser elects to purchase all or a portion of the capital stock that the Company intends to sell or issue in the Future Equity Issuance (which election shall include the number of shares of such capital stock that Purchaser intends to purchase) by 11:59 p.m., New York City time, on the fifth third (5th3rd) Business Day after and excluding the date of on which Company so notifies Xxxxxxxx, Company shall use its best efforts to engage in good faith discussions with Xxxxxxxx regarding the proposed Future Equity Issuance Description, then the Company and shall not consummate such Future Equity Issuance without selling Purchaser for five (5) full Business Days after and excluding the capital stock that it elected date of Xxxxxxxx'x election. For purposes of clarification, nothing in this Section 9(a) shall obligate Company to purchase at or prior allow Xxxxxxxx to participate in a Future Equity Issuance.
(b) Upon the consummation of such Future Equity Issuance or promptly thereafter at a closing date and place established prior to such consummation, which purchase shall be at the price and on the other terms and conditions of the any Future Equity Issuance. If Purchaser does not elect , the Warrant Price (as defined in the Warrant) shall automatically be reduced to receive equal the lesser of (A) the Warrant Price as then in effect and (B) the Later Issuance Price.
(c) If, at any time within one (1) year following any Closing Date or the closing of any exercise of the Warrant (each, a Future Equity Issuance Description with respect "Diluted Investment Closing"), there is (i) a public disclosure of Company's intention or agreement to engage in a Future Equity Issuance, or (ii) a consummation of a Future Equity Issuance, in each case at a price per share below the purchase price or exercise price per share paid (or deemed paid in the case of a Share Quarterly Payment or Cashless Exercise (as defined in the Warrant)) by Xxxxxxxx for the Common Shares acquired at such Diluted Investment Closing, then promptly, and no later than one in any case within three (3) Business Days, following such disclosure or consummation, Company shall issue and deliver a number of shares of Common Stock to Xxxxxxxx equal to the positive difference, if any, with respect to each Diluted Investment Closing, between (x) the quotient of (1) Business Day after the aggregate purchase price or aggregate exercise price paid (or deemed to have been paid in the case of a Share Quarterly Payment or Cashless Exercise (as defined in the Warrant)) by Xxxxxxxx with respect to such Diluted Investment Closing divided by (2) the Later Issuance Price (as defined below) and excluding, (y) the date number of announcement shares of Common Stock actually issued to Xxxxxxxx at such Future Equity Issuance (or, if such Future Equity Issuance is not required to be publicly announced, the date of closing of such Future Equity Issuance), the Company shall provide Purchaser with a written description of the material terms of such Future Equity IssuanceDiluted Investment Closing.
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Future Equity Issuances. (a) If the Company engages or participates in (or intends to engage or participate in) any discussions with any Person regarding any sale or issuance to any Person (other than Purchaser or its affiliates) of any shares of, or securities convertible into, exercisable or exchangeable for, or whose value is derived in whole or in part from, any shares of any class of the Company's ’s capital stock at a Later Issuance Price (as defined below) less than the Initial Investment Price, Later Investment Price or Warrant Price (as defined in the Warrant), as the case may be, subsequent to any Closing Date or the closing of any exercise of any WarrantDate, other than an Excluded Issuance (a "“Future Equity Issuance"”), the Company shall (i) promptly notify Purchaser that of the Company intends existence of the Company’s intentions or discussions with respect to effect a the proposed Future Equity Issuance. If, within two Issuance and (2ii) Business Days after and excluding the date of receipt of in connection with such notice, inquire whether Purchaser notifies the Company in writing that Purchaser would like desires to be informed of as to the terms and conditions substance of such Future Equity Issuance, then the Company shall promptly provide Purchaser with a written description of the terms and conditions of such proposed Future Equity Issuance, including a description of the capital stock to be sold intentions or issued, the investor or investors in the Future Equity Issuance, the price, the quantity and all other information reasonably necessary for Purchaser to make an informed decision on whether it desires to participate in the Future Equity Issuance (the "Future Equity Issuance Description ")discussions. If Purchaser notifies the Company in writing that Purchaser elects to purchase all or a portion of the capital stock that the Company intends become informed with respect to sell or issue in the such proposed Future Equity Issuance (which election shall include the number of shares of such capital stock that Purchaser intends to purchase) by 11:59 p.m., New York City time, on the fifth third (5th3rd) Business Day after and excluding the date of on which the Company so notifies Purchaser, the Company shall use its best efforts to engage in good faith discussions with Purchaser regarding the proposed Future Equity Issuance Description, then the Company and shall not consummate such Future Equity Issuance without selling for three (3) full Business Days after and excluding the date of Purchaser’s election. For purposes of clarification, nothing in this subsection shall obligate the Company to allow Purchaser the capital stock that it elected to purchase at or prior to the consummation of such Future Equity Issuance or promptly thereafter at participate in a closing date and place established prior to such consummation, which purchase shall be at the price and on the other terms and conditions of the Future Equity Issuance. If Purchaser does .
(b) From and after the date of this Agreement until 11:59 p.m., New York City time, on June 30, 2008, the Company shall not elect announce or consummate any issuance of debt of the Company or any of its Subsidiaries together with any shares of, or securities convertible into, exercisable or exchangeable for, or whose value is derived in whole or in part from, any shares of any class of the Company’s capital stock at a per share conversion, exercise or exchange price that is lower than the Daily Market Price as of the date of such issuance (or, if earlier, the date on which the Company agrees to receive effect such issuance), in one transaction or any series of related transactions, unless all such transactions individually and in the aggregate constitute a Future Equity Issuance Description with respect Specified Issuance.
(c) If, within One Hundred Thirty-Five (135) days following the Initial Investment Closing Date, any Later Investment Closing Date or the closing of any exercise of the Warrant (the “Prior Period”), there is (i) a public disclosure of the Company’s intention or agreement to engage in a Future Equity Issuance, or (ii) a consummation of a Future Equity Issuance, in each case at a price per share below an Initial Investment Price, Later Investment Price or Warrant Exercise Price (as defined in the Warrant) previously paid by the Purchaser (or deemed to have been paid in the case of Cashless Exercise (as defined herein and in the Warrant)) at any time during the Prior Period, then promptlythe Company shall notify Purchaser and each Holder (as defined in the Warrant) of each such disclosure and each such consummation, which notice shall include a copy of such disclosure or the terms and date of such consummation (the “Equity Issuance Notice”), no later than one (1) Business Day after each such disclosure and excluding, each such consummation.
(d) On or after the date of announcement delivery of such an Equity Issuance Notice (or on or after the date on which a disclosure or consummation described in Section 9(c) has occurred that requires the Company to deliver an Equity Issuance Notice), then:
(i) the Exercise Price (as defined in the Warrant) shall be reduced as set forth in the Warrant; and
(ii) in the case of a Future Equity Issuance disclosed or consummated within One Hundred Thirty-Five (or135) days following any Initial Investment Closing Date, if such Future Equity Issuance is not required to be publicly announced, any Later Investment Closing Date or the date of closing of such Future Equity Issuance)any exercise of the Warrant, the Company shall provide promptly issue and deliver a number of shares of Common Stock to Purchaser equal to the positive difference, if any, with a written description respect to each such Closing Date and each closing of any exercise of the material terms Warrant during the Prior Period, between (x) the quotient of (A) the Investment Amount with respect to such Future Equity IssuanceInitial Investment, Later Investment or such Warrant exercise closing divided by (B) the Later Issuance Price (as defined below) and (y) the number of shares of Common Stock issued on such Closing Date or such Warrant exercise closing.
Appears in 1 contract
Samples: Purchase Agreement (Syntroleum Corp)
Future Equity Issuances. (a) If the Company engages or participates in (or intends to engage or participate in) any discussions with any Person regarding any sale or issuance to any Person (other than Purchaser or its affiliates) of any shares of, or securities convertible into, exercisable or exchangeable for, or whose value is derived in whole or in part from, any shares of any class of the Company's capital stock at a Later Issuance Price (as defined below) less than the Initial Investment Price, Later Investment Price or Warrant Price (as defined in the Warrant), as the case may be, subsequent to any Closing Date or the closing of any exercise of any Warrant, other than an Excluded Issuance (a "Future Equity Issuance"), the Company shall (i) promptly notify Purchaser that of the Company intends existence of the Company's intentions or discussions with respect to effect a the proposed Future Equity Issuance. If, within two Issuance and (2ii) Business Days after and excluding the date of receipt of in connection with such notice, inquire whether Purchaser notifies the Company in writing that Purchaser would like desires to be informed of as to the terms and conditions substance of such Future Equity Issuance, then the Company shall promptly provide Purchaser with a written description of the terms and conditions of such proposed Future Equity Issuance, including a description of the capital stock to be sold intentions or issued, the investor or investors in the Future Equity Issuance, the price, the quantity and all other information reasonably necessary for Purchaser to make an informed decision on whether it desires to participate in the Future Equity Issuance (the "Future Equity Issuance Description ")discussions. If Purchaser notifies the Company in writing that Purchaser elects to purchase all or a portion of the capital stock that the Company intends become informed with respect to sell or issue in the such proposed Future Equity Issuance (which election shall include the number of shares of such capital stock that Purchaser intends to purchase) by 11:59 p.m., New York City time, on the fifth third (5th3rd) Business Day after and excluding the date of on which the Company so notifies Purchaser, the Company shall use its best efforts to engage in good faith discussions with Purchaser regarding the proposed Future Equity Issuance Description, then the Company and shall not consummate such Future Equity Issuance without selling for three (3) full Business Days after and excluding the date of Purchaser's election. For purposes of clarification, nothing in this subsection shall obligate the Company to allow Purchaser the capital stock that it elected to purchase at or prior to the consummation of such Future Equity Issuance or promptly thereafter at participate in a closing date and place established prior to such consummation, which purchase shall be at the price and on the other terms and conditions of the Future Equity Issuance. .
(b) If Purchaser does not elect at any time occurring on or before the first anniversary of any Closing Date or the first anniversary of any closing of any exercise of a Warrant (the "Prior Period"), there is (x) a public disclosure of the Company's intention or agreement to receive a Future Equity Issuance Description with respect to engage in a Future Equity Issuance, or (y) a consummation of a Future Equity Issuance then promptlythe Company shall notify Purchaser and each Holder (as defined in such Warrant) of each such disclosure and each such consummation, which notice shall include a copy of such disclosure or the terms and date of such consummation (the "Equity Issuance Notice"), no later than one (1) Business Day after each such disclosure and excluding, each such consummation.
(c) On or after the date of announcement delivery of such an Equity Issuance Notice (or on or after the date on which a disclosure or consummation described in Section 9(b) has occurred that requires the Company to deliver an Equity Issuance Notice), then:
(i) the applicable Warrant Price (as defined in each Warrant) shall be reduced as set forth in each Warrant;
(ii) the Floor Price shall equal the lesser of (x) 90% of the Later Issuance Price and (y) the Floor Price previously in effect;
(iii) the Cap Price shall equal the lesser of (x) 120% of the Later Issuance Price and (y) the Cap Price previously in effect; and
(iv) in the case of a Future Equity Issuance disclosed or consummated within one (or, if such Future Equity Issuance is not required to be publicly announced, 1) year following any Closing Date or the date of closing of such Future Equity Issuance)any exercise of a Warrant, the Company shall provide promptly issue and deliver a number of shares of Common Stock to Purchaser equal to the positive difference, if any, with a written description respect to each such Closing Date and each closing of the material terms any exercise of such Future Equity IssuanceWarrant during the Prior Period, between (x) the quotient of (A) the Investment Amount with respect to such Initial Investment, Later Investment or such Warrant exercise closing divided by (B) the Later Issuance Price and (y) the number of shares of Common Stock issued on such Closing Date or such Warrant exercise closing.
Appears in 1 contract
Future Equity Issuances. (a) If the Company engages or participates in (or intends to engage or participate in) any discussions discussion with any Person regarding any sale or issuance to any Person (other than Purchaser Xxxxxxxx or its affiliates) of any shares of, or securities convertible into, exercisable or exchangeable for, or whose value is derived in whole or in part from, any shares of any class of the Company's capital stock at a Later Issuance Price (as defined below) less than the Initial Investment Price, Later Investment Price or Warrant Price (as defined in the Warrant), as the case may be, subsequent to any Closing Date or the closing of any exercise of any Warrantstock, other than an Excluded Issuance (a "Future Equity Issuance"), the Company shall promptly notify Purchaser Xxxxxxxx that the Company intends to effect a Future Equity IssuanceIssuance (the "Future Equity Issuance Notice"). If, within two (2) Business Days after and excluding the date of receipt of such notice, Purchaser Xxxxxxxx notifies the Company in writing that Purchaser Xxxxxxxx would like to be informed of the terms and conditions of such Future Equity Issuance, then the Company shall promptly provide Purchaser Xxxxxxxx with a written description of the terms and conditions of such proposed Future Equity Issuance, including a description of the capital stock to be sold or issued, the investor or investors in the Future Equity Issuance, the price, the quantity and all other information reasonably necessary for Purchaser Xxxxxxxx to make an informed decision on whether it desires to participate in the Future Equity Issuance (the "Future Equity Issuance Description Description"). If Purchaser Xxxxxxxx notifies the Company in writing that Purchaser Xxxxxxxx elects to purchase all or a portion of the capital stock that the Company intends to sell or issue in the Future Equity Issuance (which election shall include the number of shares of such capital stock that Purchaser Xxxxxxxx intends to purchase) by 11:59 p.m., New York City time, on the fifth third (5th3rd) Business Day after and excluding the date of the Future Equity Issuance Description, then the Company shall not consummate such Future Equity Issuance without selling Purchaser Xxxxxxxx the capital stock that it elected to purchase at or prior to the consummation of such Future Equity Issuance or promptly thereafter at a closing date and place established prior to such consummation, which purchase shall be at the price and on the other terms and conditions of the Future Equity Issuance. If Purchaser Xxxxxxxx does not elect to receive a Future Equity Issuance Description with respect to a Future Equity Issuance, then promptly, and no later than one (1) Business Day after and excluding, the date of announcement of such Future Equity Issuance (or, if such Future Equity Issuance is not required to be publicly announced, the date of closing of such Future Equity Issuance), the Company shall provide Purchaser Xxxxxxxx with a written description of the material terms of such Future Equity Issuance.
(b) If, at any time, there is (i) a public disclosure of Company's intention or agreement to engage in a Future Equity Issuance, or (ii) a consummation of a Future Equity Issuance, then (A) if such Future Equity Issuance is proposed to be or is consummated at a price per share below the Conversion Price or Redemption Price deemed paid by Xxxxxxxx in connection with a prior conversion or redemption of Preferred Shares or below the Daily Market Price of any Common Shares previously issued as a dividend on Preferred Shares as of the applicable dividend date, then promptly, and in any case within three (3) Business Days, following such disclosure or consummation, Company shall issue and deliver a number of shares of Common Stock to Xxxxxxxx equal to the positive difference, if any, between (x) the quotient of (1) the aggregate Conversion Price and Redemption Price deemed paid by Xxxxxxxx in connection with all prior conversions or redemptions of Preferred Shares and the Daily Market Price of all Common Shares previously issued as a dividend on Preferred Shares as of the applicable dividend dates, divided by (2) the Later Issuance Price (as defined below) and (y) the number of Common Shares actually issued to Xxxxxxxx in connection with such conversions, redemptions and dividends and (B) the Conversion Price and Redemption Price shall be adjusted to equal the lesser of (x) the Conversion Price or Redemption Price, as applicable, as then in effect and (y) the Later Issuance Price.
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