Adjustments to Conversion Rate. Notwithstanding anything in this Section 8 to the contrary, no change in the Conversion Rate shall be made until the cumulative effect of the adjustments called for by this Section 8 since the date of the last change in the Conversion Rate would change the Conversion Rate by more than 1%. However, once the cumulative effect would result in such a change, then the Conversion Rate shall be changed to reflect all adjustments called for by this Section 8 and not previously made. Subject to the foregoing, the Conversion Rate shall be adjusted from time to time as follows: (a) In case of any consolidation or merger of the Company with any other corporation (other than a wholly owned subsidiary of the Company), or in case of any sale or transfer of all or substantially all of the assets of the Company, or in case of any share exchange pursuant to which all of the outstanding shares of Common Stock are converted into other securities or property, the Company shall, prior to or at the time of such transaction, make appropriate provision or cause appropriate provision to be made so that holders of each share of Preferred Stock then outstanding shall have the right thereafter to convert such share of Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of Preferred Stock could have been converted immediately prior to the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or other assets upon completion of such transaction, the Company shall provide or cause to be provided to each holder of Preferred Stock the right to elect the securities, cash or other assets into which the Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election). (b) In case the Company shall (i) pay a dividend or make a distribution on its Common Stock in shares of its capital stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine the shares of its outstanding Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of its capital stock, then in each such case the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Company which such holder would have owned or have been entitled to receive after the happening of such event had such Preferred Stock been converted immediately prior to the record date for such event (or if no record date is established in connection with such event, the effective date for such action). An adjustment pursuant to this subparagraph (b) shall become effective immediately after the record date in the case of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification. (c) In case the Company shall at any time prior to February 23, 2001 (i) except pursuant to (A) 1,103,667 options and 3,634,208 warrants outstanding as of the date hereof or (B) securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, dated February 24, 1998, between the Company and Harvest States Cooperatives (the "Stock Purchase Agreement"), issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issuance or sale, (ii), except for securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, issue or sell any warrants, options or other rights to acquire shares of its Common Stock at a purchase price less than the Conversion Price in effect immediately prior to the time of such issuance or sale, or (iii) issue or sell any other securities that are convertible into shares of Common Stock for a purchase or exchange price less than the Conversion Price in effect immediately prior to the time of such issuance or sale then, upon such issuance or sale, the Conversion Rate shall be increased by reducing the Conversion Price to the price at which such shares of Common Stock are being issued or sold by the Company or the price at which such other securities are exercisable or convertible into shares of the Company's Common Stock, and then adjusting the Conversion Rate to $1,000.00 divided by the new Conversion Price. (d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding any rights or warrants to purchase securities of the Company referred to in subparagraph (c) above, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in subparagraph (b) above), then in each such case the Conversion Rate then in effect shall be adjusted in accordance with the formula C1 = the adjusted Conversion Rate. C = the current Conversion Rate. M = the Current Market Price per share of Common Stock on the record date mentioned below. F = the amount of such cash dividend and/or the fair market value on the record date of the assets, securities, rights or warrants to be distributed divided by the number of shares of Common Stock outstanding on the record date. The Board of Directors of the Company shall determine in good faith such fair market value. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution. (e) All calculations hereunder shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be. (f) In the event that at any time, as a result of an adjustment made pursuant to subparagraph(a) or (b) above, the holder of any Preferred Stock thereafter surrendered for conversion shall become entitled to receive securities, cash or assets other than Common Stock, the number or amount of such securities or property so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in subparagraphs (a) through (e) above. Except as otherwise provided above in this Section 8, no adjustment in the Conversion Rate shall be made in respect of any conversion for share distributions or dividends theretofore declared and paid or payable on the Common Stock. Whenever the Conversion Rate is adjusted, the Company shall give notice by mail at the time of, and together with, the next dividend payment to the holders of record of Preferred Stock, setting forth the adjustment and the new Conversion Rate. Notwithstanding the foregoing notice provisions, failure by the Company to give such notice or a defect in such notice shall not affect the binding nature of such corporate action of the Company. Whenever the Company shall propose to take any of the actions specified in subparagraphs (a), (b), (c) or (d) of the first paragraph of this Section 8 which would result in any adjustment in the Conversion Rate, the Company shall cause a notice to be mailed at least 30 days prior to the date on which the books of the Company will close or on which a record will be taken for such action to the holders of record of the outstanding Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Company and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure by the Company to give such notice or any defect in such notice shall not affect the validity of the transaction. Notwithstanding any other provision of this Section 8, no adjustment in the Conversion Rate need be made (A) for a change in par value of the Common Stock not involving a subdivision or combination described in clause (ii) or (iii) of subparagraph (b) of the first paragraph of this Section 8 or (B) after the Preferred Stock becomes convertible solely into cash (and no interest shall accrue on the cash).
Appears in 1 contract
Adjustments to Conversion Rate. Notwithstanding anything in this Section 8 (i) Adjustment to the contrary, no change in the Conversion Rate shall be made until due to Stock Splits, Stock Dividend or Other Similar Event. If, prior to the cumulative effect conversion of all of the adjustments called for outstanding shares of Series B Preferred Stock, the number of outstanding shares of Common Stock is increased by this Section 8 since the date of the last change in the Conversion Rate would change the Conversion Rate by more than 1%. Howevera stock split, once the cumulative effect would result in such a change, then the Conversion Rate shall be changed to reflect all adjustments called for by this Section 8 and not previously made. Subject to the foregoingstock dividend or other similar event, the Conversion Rate shall be adjusted from time to time as follows:proportionately reduced, or if the number of outstanding shares of Common Stock is decreased by a combination or reclassification of shares, or other similar event, the Conversion Rate shall be proportionately increased.
(aii) In case Adjustment Due to Consolidation, Merger, Exchange of any consolidation Shares, Recapitalization, Reorganization or merger Other Similar Event. If, prior to the conversion of all of the outstanding shares of Series B Preferred Stock, there shall be a merger, consolidation, exchange of shares, recapitalization, reorganization or other similar event, as a result of which shares of Common Stock shall be changed into the same or a different number of shares of the same or another class or classes of stock or securities of the Company with any other corporation (other than a wholly owned subsidiary of the Company)or another entity, or in case of any there is a sale or transfer of all or substantially all of the Company's assets that is not deemed to be a liquidation, dissolution or winding up pursuant to Section 4(a), then the Holders thereafter shall have the right to receive upon conversion of the CompanySeries B Preferred Stock, or upon the basis and upon the terms and conditions specified herein and in case of any share exchange pursuant to which all lieu of the outstanding shares of Common Stock are converted into other immediately theretofore issuable upon conversion, such stock, securities or property, the Company shall, prior to or at the time of such transaction, make appropriate provision or cause appropriate provision to be made so that holders of each share of Preferred Stock then outstanding shall have the right thereafter to convert such share of Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of Preferred Stock could have been converted immediately prior to the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or and/or other assets upon completion of such transaction, the Company shall provide or cause to be provided to each holder of Preferred Stock the right to elect the securities, cash or other assets into which the Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election).
(b) In case the Company shall (i) pay a dividend or make a distribution on its Common Stock in shares of its capital stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine the shares of its outstanding Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of its capital stock, then in each such case the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Company which such holder Holder would have owned or have been entitled to receive after in such transaction had the happening of such event had such Series B Preferred Stock been converted immediately prior to the record date for such event (or if no record date is established in connection with such event, the effective date for such action). An adjustment pursuant to this subparagraph (b) shall become effective immediately after the record date in the case of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.
(c) In case the Company shall at any time prior to February 23, 2001 (i) except pursuant to (A) 1,103,667 options and 3,634,208 warrants outstanding as of the date hereof or (B) securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, dated February 24, 1998, between the Company and Harvest States Cooperatives (the "Stock Purchase Agreement"), issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issuance or sale, (ii), except for securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, issue or sell any warrants, options or other rights to acquire shares of its Common Stock at a purchase price less than the Conversion Price in effect immediately prior to the time of such issuance or sale, or (iii) issue or sell any other securities that are convertible into shares of Common Stock for a purchase or exchange price less than the Conversion Price in effect immediately prior to the time of such issuance or sale then, upon such issuance or sale, the Conversion Rate shall be increased by reducing the Conversion Price to the price at which such shares of Common Stock are being issued or sold by the Company or the price at which such other securities are exercisable or convertible into shares of the Company's Common Stocktransaction, and then adjusting the Conversion Rate to $1,000.00 divided by the new Conversion Price.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding in any rights or warrants to purchase securities of the Company referred to in subparagraph (c) above, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in subparagraph (b) above), then in each such case the Conversion Rate then in effect shall be adjusted in accordance with the formula C1 = the adjusted Conversion Rate. C = the current Conversion Rate. M = the Current Market Price per share of Common Stock on the record date mentioned below. F = the amount of such cash dividend and/or the fair market value on the record date of the assets, securities, rights or warrants to be distributed divided by the number of shares of Common Stock outstanding on the record date. The Board of Directors of the Company shall determine in good faith such fair market value. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution.
(e) All calculations hereunder appropriate provisions shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be.
(f) In the event that at any time, as a result of an adjustment made pursuant to subparagraph(a) or (b) above, the holder of any Preferred Stock thereafter surrendered for conversion shall become entitled to receive securities, cash or assets other than Common Stock, the number or amount of such securities or property so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common rights and interests of the Holders of the Series B Preferred Stock contained to the end that the provisions hereof shall thereafter be applicable, as nearly as may be practicable in subparagraphs relation to any securities thereafter deliverable upon the exercise thereof. The Company shall not effect any transaction described in this Section 6(d)(ii) unless (a) through it first gives twenty (e20) above. Except as otherwise provided above in this Section 8days prior written notice of such merger, no adjustment in consolidation, exchange of shares, recapitalization, reorganization or other similar event (during which time the Conversion Rate Holder shall be made in respect entitled to convert its shares of any conversion for share distributions Series B Preferred Stock into Common Stock to the extent permitted hereby) and (b) the resulting successor or dividends theretofore declared and paid or payable on acquiring company (if not the Common Stock. Whenever Company) assumes by written instrument the Conversion Rate is adjusted, obligation of the Company shall give notice by mail at under this Certificate of Designation, including the time of, and together with, the next dividend payment to the holders of record of Preferred Stock, setting forth the adjustment and the new Conversion Rate. Notwithstanding the foregoing notice provisions, failure by the Company to give such notice or a defect in such notice shall not affect the binding nature of such corporate action of the Company. Whenever the Company shall propose to take any of the actions specified in subparagraphs (a), (b), (c) or (d) of the first paragraph obligations of this Section 8 which would result in any adjustment in the Conversion Rate, the Company shall cause a notice to be mailed at least 30 days prior to the date on which the books of the Company will close or on which a record will be taken for such action to the holders of record of the outstanding Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Company and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure by the Company to give such notice or any defect in such notice shall not affect the validity of the transaction. Notwithstanding any other provision of this Section 8, no adjustment in the Conversion Rate need be made (A) for a change in par value of the Common Stock not involving a subdivision or combination described in clause (ii) or (iii) of subparagraph (b) of the first paragraph of this Section 8 or (B) after the Preferred Stock becomes convertible solely into cash (and no interest shall accrue on the cash6(d)(ii).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Fusion Fund Inc /De/)
Adjustments to Conversion Rate. Notwithstanding anything in ------------------------------ this Section 8 to the contrary, no change in the Conversion Rate shall be made until the cumulative effect of the adjustments called for by this Section 8 since the date of the last change in the Conversion Rate would change the Conversion Rate by more than 1%. However, once the cumulative effect would result in such a change, then the Conversion Rate shall be changed to reflect all adjustments called for by this Section 8 and not previously made. Subject to the foregoing, the Conversion Rate shall be adjusted from time to time as follows:
(a) In case of any consolidation or merger of the Company Corporation with any other corporation (other than a wholly owned subsidiary of the CompanyCorporation), or in case of any sale or transfer of all or substantially all of the assets of the CompanyCorporation, or in case of any share exchange pursuant to which all of the outstanding shares of Common Stock are converted into other securities or property, the Company Corporation shall, prior to or at the time of such transaction, make appropriate provision or cause appropriate provision to be made so that holders of each share of Convertible Preferred Stock then outstanding shall have the right thereafter to convert such share of Convertible Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of Convertible Preferred Stock could have been converted immediately prior to the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or other assets upon completion of such transaction, the Company Corporation shall provide or cause to be provided to each holder of Convertible Preferred Stock the right to elect the securities, cash or other assets into which the Convertible Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election).
(b) In case the Company Corporation shall (i) pay a dividend or make a distribution on its Common Stock in shares of its capital stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine the shares of its outstanding Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of its capital stock, then in each such case the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Convertible Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Company Corporation which such holder would have owned or have been entitled to receive after the happening of such event had such Convertible Preferred Stock been converted immediately prior to the record date for such event (or if no record date is established in connection with such event, the effective date for such action). An adjustment pursuant to this subparagraph (b) shall become effective immediately after the record date in the case of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.
(ci) In case the Company Corporation shall at any time prior issue Additional Shares of Common Stock (as defined herein) (including, without limitation, Additional Shares of Common Stock deemed to February 23, 2001 (i) except be issued pursuant to (ASection 8(c)(iii)) 1,103,667 options and 3,634,208 warrants outstanding as of the date hereof without consideration or (B) securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, dated February 24, 1998, between the Company and Harvest States Cooperatives (the "Stock Purchase Agreement"), issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Current Market Price in effect (as defined herein) calculated as provided herein as of the date of and immediately prior to the time of such issuance or sale, (ii), except for securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, issue or sell any warrants, options or other rights to acquire shares of its Common Stock at a purchase price less than the Conversion Price in effect immediately prior to the time of such issuance or sale, or (iii) issue or sell any other securities that are convertible into shares of Common Stock for a purchase or exchange price less than the Conversion Price in effect immediately prior to the time of such issuance or sale then, upon such issuance or sale, the Conversion Rate shall be increased by reducing the Conversion Price to the price at which such shares of Common Stock are being issued or sold by the Company or the price at which such other securities are exercisable or convertible into shares of the Company's Common Stock, and then adjusting the Conversion Rate to $1,000.00 divided by the new Conversion Price.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding any rights or warrants to purchase securities of the Company referred to in subparagraph (c) above, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in subparagraph (b) above)issue, then in each such case the Conversion Rate then in effect on such issue date shall be adjusted in accordance with the formula C1 formula: O + N C//1//= C x O + N x P ----- M where C//1// = the adjusted Conversion Rate. C = the current Conversion Rate. O = the number of shares of Common Stock outstanding immediately prior to such issue. N = the number of additional shares of Common Stock offered. P = the offering price per share of the additional shares. M = the Current Market Price per share of Common Stock on immediately prior to such issue. For the record date mentioned below. F = the amount purpose of such cash dividend and/or the fair market value on the record date of the assetscalculation, securities, rights or warrants to be distributed divided by the number of shares of Common Stock outstanding immediately prior to such issue shall be calculated on the record date. The Board a fully diluted basis, as if all shares of Directors Convertible Preferred Stock and all Convertible Securities had been fully converted into shares of the Company shall determine in good faith Common Stock immediately prior to such fair market value. Such adjustment shall become effective immediately after the record date issuance and any outstanding warrants, options or other rights for the determination purchase of shareholders entitled shares of stock or convertible securities had been fully exercised immediately prior to receive such dividend or distributionissuance (and the resulting securities fully converted into shares of Common Stock, if so convertible) as of such date.
(eii) All calculations hereunder shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be.
(f) In the event that at any time, as a result of an adjustment made pursuant to subparagraph(a) or (b) above, the holder of any Preferred Stock thereafter surrendered for conversion shall become entitled to receive securities, cash or assets other than Common Stock, the number or amount of such securities or property so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in subparagraphs (a) through (e) above. Except as otherwise provided above in this Section 8, no adjustment in the Conversion Rate shall be made in respect of any conversion for share distributions or dividends theretofore declared and paid or payable on the Common Stock. Whenever the Conversion Rate is adjusted, the Company shall give notice by mail at the time of, and together with, the next dividend payment to the holders of record of Preferred Stock, setting forth the adjustment and the new Conversion Rate. Notwithstanding the foregoing notice provisions, failure by the Company to give such notice or a defect in such notice shall not affect the binding nature of such corporate action of the Company. Whenever the Company shall propose to take any of the actions specified in subparagraphs (a), (b), (c) or (d) of the first paragraph For purposes of this Section 8 which would result in any adjustment in the Conversion Rate8(c), the Company following definitions shall cause a notice to be mailed at least 30 days prior to the date on which the books of the Company will close or on which a record will be taken for such action to the holders of record of the outstanding Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Company and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure by the Company to give such notice or any defect in such notice shall not affect the validity of the transaction. Notwithstanding any other provision of this Section 8, no adjustment in the Conversion Rate need be made apply: (A) for a change in par value of the "Options" shall mean rights, options or warrants to ------- subscribe for, purchase or otherwise acquire either Common Stock not involving a subdivision or combination described in clause (ii) or (iii) of subparagraph (b) of the first paragraph of this Section 8 or Convertible Securities; (B) "Convertible Securities" shall mean any ---------------------- evidences of indebtedness, shares or other securities convertible into or exchangeable for Common Stock; (C) "Additional Shares of Common Stock" --------------------------------- shall mean all shares of Common Stock issued (or, pursuant to Section 8(c)(iii), deemed to be issued) by the Corporation after July 26, 1999, other than shares of Common Stock issued or issuable: (1) upon conversion of shares of the Convertible Preferred Stock becomes convertible solely into cash (and no interest shall accrue on the cash).or upon
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (New Century Financial Corp)
Adjustments to Conversion Rate. Notwithstanding anything in this Section 8 In the event that the Corporation sells Common Stock at a price below the fair market value of such Common Stock or issues options to purchase Common Stock at a price below the contraryfair market value of the Common Stock on the date the option is granted (as determined by the Corporation's Board of Directors or any special committee of independent directors thereof), no change in the Conversion Rate shall be made until adjusted to equal the cumulative effect of the adjustments called for product obtained by this Section 8 since the date of the last change in multiplying the Conversion Rate would change in effect immediately prior to such sale (or issuance) by the Conversion Rate quotient obtained by more than 1%dividing (i) the fair market value of a share of Common Stock at the time of such sale (or issuance) by (ii) the per share price at which such Common Stock was sold (or in the case of an option, the lowest price at which such option may be exercised). HoweverIn the event of any split, once distribution, recapitalization or combination of the cumulative effect would result in such a changeCommon Stock, or other similar event, then the Conversion Rate shall be changed to reflect all adjustments called adjusted so that the holder of a share of Series I Preferred Stock will receive upon surrendering such share for by this Section 8 and not previously made. Subject to conversion the foregoing, the Conversion Rate shall be adjusted from time to time as follows:
(a) In case of any consolidation or merger of the Company with any other corporation (other than a wholly owned subsidiary of the Company), or in case of any sale or transfer of all or substantially all of the assets of the Company, or in case of any share exchange pursuant to which all aggregate percentage of the outstanding shares of Common Stock are converted into other securities or property, the Company shall, prior to or at the time of such transaction, make appropriate provision or cause appropriate provision to be made so that holders of each share of Preferred Stock then outstanding shall have the right thereafter to convert such share of Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of Preferred Stock could have been converted immediately prior to the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or other assets upon completion of such transaction, the Company shall provide or cause to be provided to each holder of Preferred Stock the right to elect the securities, cash or other assets into which the Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election).
(b) In case the Company shall (i) pay a dividend or make a distribution on its Common Stock in shares of its capital stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine the shares of its outstanding Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of its capital stock, then in each such case the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Company which such holder would have owned or have received if the share had been entitled to receive after the happening of such event had such Preferred Stock been converted submitted for conversion immediately prior to such split, distribution, recapitalization, combination, or other similar event. If the record date for such Corporation shall be party to any merger, consolidation, share exchange, separation, reorganization or liquidation of the Corporation, or other similar event (or if no record date is established in connection with such eventcollectively, the effective date for such action). An adjustment pursuant to this subparagraph (b) shall become effective immediately after the record date in the case of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.
(c) In case the Company shall at any time prior to February 23, 2001 (i) except pursuant to (A) 1,103,667 options and 3,634,208 warrants outstanding as of the date hereof or (B) securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, dated February 24, 1998, between the Company and Harvest States Cooperatives (the an "Stock Purchase AgreementEvent"), issue or sell any shares as a result of its which Common Stock for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issuance or sale, (ii), except for securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, issue Corporation shall be changed into the same or sell any warrants, options a different percentage of the same or other rights to acquire shares of its Common Stock at a purchase price less than the Conversion Price in effect immediately prior to the time of such issuance or sale, or (iii) issue or sell any other securities that are convertible into shares another type of Common Stock for a purchase or exchange price less than securities of the Conversion Price in effect immediately prior to the time of such issuance Corporation or sale thenanother entity, upon such issuance or sale, then the Conversion Rate shall be increased by reducing adjusted so that a holder submitting shares of Series I Preferred Stock for conversion after such Event shall receive the Conversion Price to the price at which such shares aggregate percentage and type of Common Stock are being issued or sold by the Company or the price at which such other securities are exercisable or convertible into shares of the Company's Common Stock, and then adjusting the Conversion Rate to $1,000.00 divided by the new Conversion Price.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding any rights or warrants to purchase securities of the Company referred to in subparagraph (c) above, any dividend Corporation or distribution paid in cash out of another entity that such holder would have received if the retained earnings of the Company and any dividend or distribution referred to in subparagraph (b) above), then in each such case the Conversion Rate then in effect shall be adjusted in accordance with the formula C1 = the adjusted Conversion Rate. C = the current Conversion Rate. M = the Current Market Price per share of Common Stock on the record date mentioned below. F = the amount of such cash dividend and/or the fair market value on the record date of the assets, securities, rights or warrants to be distributed divided by the number of shares of Common Stock outstanding on the record date. The Board of Directors of the Company shall determine in good faith such fair market value. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution.
(e) All calculations hereunder shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be.
(f) In the event that at any time, as a result of an adjustment made pursuant to subparagraph(a) or (b) above, the holder of any Preferred Stock thereafter surrendered had been submitted for conversion shall become entitled to receive securities, cash or assets other than Common Stock, the number or amount of such securities or property so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in subparagraphs (a) through (e) above. Except as otherwise provided above in this Section 8, no adjustment in the Conversion Rate shall be made in respect of any conversion for share distributions or dividends theretofore declared and paid or payable on the Common Stock. Whenever the Conversion Rate is adjusted, the Company shall give notice by mail at the time of, and together with, the next dividend payment to the holders of record of Preferred Stock, setting forth the adjustment and the new Conversion Rate. Notwithstanding the foregoing notice provisions, failure by the Company to give such notice or a defect in such notice shall not affect the binding nature of such corporate action of the Company. Whenever the Company shall propose to take any of the actions specified in subparagraphs (a), (b), (c) or (d) of the first paragraph of this Section 8 which would result in any adjustment in the Conversion Rate, the Company shall cause a notice to be mailed at least 30 days immediately prior to the date on which the books of the Company will close or on which a record will be taken for such action to the holders of record of the outstanding Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Company and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure by the Company to give such notice or any defect in such notice shall not affect the validity of the transaction. Notwithstanding any other provision of this Section 8, no adjustment in the Conversion Rate need be made (A) for a change in par value of the Common Stock not involving a subdivision or combination described in clause (ii) or (iii) of subparagraph (b) of the first paragraph of this Section 8 or (B) after the Preferred Stock becomes convertible solely into cash (and no interest shall accrue on the cash)Event.
Appears in 1 contract
Adjustments to Conversion Rate. Notwithstanding anything in this Section 8 (i) Adjustment to the contrary, no change in the Conversion Rate shall be made until due to Stock Splits, Stock Dividend or Other Similar Event. If, prior to the cumulative effect conversion of all of the adjustments called for outstanding shares of Series C Preferred Stock, the number of outstanding shares of Common Stock is increased by this Section 8 since the date of the last change in the Conversion Rate would change the Conversion Rate by more than 1%. Howevera stock split, once the cumulative effect would result in such a change, then the Conversion Rate shall be changed to reflect all adjustments called for by this Section 8 and not previously made. Subject to the foregoingstock dividend or other similar event, the Conversion Rate shall be adjusted from time to time as follows:proportionately reduced, or if the number of outstanding shares of Common Stock is decreased by a combination or reclassification of shares, or other similar event, the Conversion Rate shall be proportionately increased.
(aii) In case Adjustment Due to Consolidation, Merger, Exchange of any consolidation Shares, Recapitalization, Reorganization or merger Other Similar Event. If, prior to the conversion of all of the outstanding shares of Series C Preferred Stock, there shall be a merger, consolidation, exchange of shares, recapitalization, reorganization or other similar event, as a result of which shares of Common Stock shall be changed into the same or a different number of shares of the same or another class or classes of stock or securities of the Company with any other corporation (other than a wholly owned subsidiary of the Company)or another entity, or in case of any there is a sale or transfer of all or substantially all of the Company's assets that is not deemed to be a liquidation, dissolution or winding up pursuant to Section 4(a), then the Holders thereafter shall have the right to receive upon conversion of the CompanySeries C Preferred Stock, or upon the basis and upon the terms and conditions specified herein and in case of any share exchange pursuant to which all lieu of the outstanding shares of Common Stock are converted into other immediately theretofore issuable upon conversion, such stock, securities or property, the Company shall, prior to or at the time of such transaction, make appropriate provision or cause appropriate provision to be made so that holders of each share of Preferred Stock then outstanding shall have the right thereafter to convert such share of Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of Preferred Stock could have been converted immediately prior to the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or and/or other assets upon completion of such transaction, the Company shall provide or cause to be provided to each holder of Preferred Stock the right to elect the securities, cash or other assets into which the Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election).
(b) In case the Company shall (i) pay a dividend or make a distribution on its Common Stock in shares of its capital stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine the shares of its outstanding Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of its capital stock, then in each such case the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Company which such holder Holder would have owned or have been entitled to receive after in such transaction had the happening of such event had such Series C Preferred Stock been converted immediately prior to the record date for such event (or if no record date is established in connection with such event, the effective date for such action). An adjustment pursuant to this subparagraph (b) shall become effective immediately after the record date in the case of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.
(c) In case the Company shall at any time prior to February 23, 2001 (i) except pursuant to (A) 1,103,667 options and 3,634,208 warrants outstanding as of the date hereof or (B) securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, dated February 24, 1998, between the Company and Harvest States Cooperatives (the "Stock Purchase Agreement"), issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issuance or sale, (ii), except for securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, issue or sell any warrants, options or other rights to acquire shares of its Common Stock at a purchase price less than the Conversion Price in effect immediately prior to the time of such issuance or sale, or (iii) issue or sell any other securities that are convertible into shares of Common Stock for a purchase or exchange price less than the Conversion Price in effect immediately prior to the time of such issuance or sale then, upon such issuance or sale, the Conversion Rate shall be increased by reducing the Conversion Price to the price at which such shares of Common Stock are being issued or sold by the Company or the price at which such other securities are exercisable or convertible into shares of the Company's Common Stocktransaction, and then adjusting the Conversion Rate to $1,000.00 divided by the new Conversion Price.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding in any rights or warrants to purchase securities of the Company referred to in subparagraph (c) above, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in subparagraph (b) above), then in each such case the Conversion Rate then in effect shall be adjusted in accordance with the formula C1 = the adjusted Conversion Rate. C = the current Conversion Rate. M = the Current Market Price per share of Common Stock on the record date mentioned below. F = the amount of such cash dividend and/or the fair market value on the record date of the assets, securities, rights or warrants to be distributed divided by the number of shares of Common Stock outstanding on the record date. The Board of Directors of the Company shall determine in good faith such fair market value. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution.
(e) All calculations hereunder appropriate provisions shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be.
(f) In the event that at any time, as a result of an adjustment made pursuant to subparagraph(a) or (b) above, the holder of any Preferred Stock thereafter surrendered for conversion shall become entitled to receive securities, cash or assets other than Common Stock, the number or amount of such securities or property so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common rights and interests of the Holders of the Series C Preferred Stock contained to the end that the provisions hereof shall thereafter be applicable, as nearly as may be practicable in subparagraphs relation to any securities thereafter deliverable upon the exercise thereof. The Company shall not effect any transaction described in this Section 6(c)(ii) unless (a) through it first gives twenty (e20) above. Except as otherwise provided above in this Section 8days prior written notice of such merger, no adjustment in consolidation, exchange of shares, recapitalization, reorganization or other similar event (during which time the Conversion Rate Holder shall be made in respect entitled to convert its shares of any conversion for share distributions Series C Preferred Stock into Common Stock to the extent permitted hereby) and (b) the resulting successor or dividends theretofore declared and paid or payable on acquiring company (if not the Common Stock. Whenever Company) assumes by written instrument the Conversion Rate is adjusted, obligation of the Company shall give notice by mail at under this Certificate of Designation, including the time of, and together with, the next dividend payment to the holders of record of Preferred Stock, setting forth the adjustment and the new Conversion Rate. Notwithstanding the foregoing notice provisions, failure by the Company to give such notice or a defect in such notice shall not affect the binding nature of such corporate action of the Company. Whenever the Company shall propose to take any of the actions specified in subparagraphs (a), (b), (c) or (d) of the first paragraph obligations of this Section 8 which would result in any adjustment in the Conversion Rate, the Company shall cause a notice to be mailed at least 30 days prior to the date on which the books of the Company will close or on which a record will be taken for such action to the holders of record of the outstanding Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Company and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure by the Company to give such notice or any defect in such notice shall not affect the validity of the transaction. Notwithstanding any other provision of this Section 8, no adjustment in the Conversion Rate need be made (A) for a change in par value of the Common Stock not involving a subdivision or combination described in clause (ii) or (iii) of subparagraph (b) of the first paragraph of this Section 8 or (B) after the Preferred Stock becomes convertible solely into cash (and no interest shall accrue on the cash6(c)(ii).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Fusion Fund Inc /De/)
Adjustments to Conversion Rate. Notwithstanding anything in ------------------------------ this Section 8 to the contrary, no change in the Conversion Rate shall be made until the cumulative effect of the adjustments called for by this Section 8 since the date of the last change in the Conversion Rate would change the Conversion Rate by more than 1%. However, once the cumulative effect would result in such a change, then the Conversion Rate shall be changed to reflect all adjustments called for by this Section 8 and not previously made. Subject to the foregoing, the Conversion Rate shall be adjusted from time to time as follows:
(a) In case of any consolidation or merger of the Company Corporation with any other corporation (other than a wholly owned subsidiary of the CompanyCorporation), or in case of any sale or transfer of all or substantially all of the assets of the CompanyCorporation, or in case of any share exchange pursuant to which all of the outstanding shares of Common Stock are converted into other securities or property, the Company Corporation shall, prior to or at the time of such transaction, make appropriate provision or cause appropriate provision to be made so that holders of each share of Convertible Preferred Stock then outstanding shall have the right thereafter to convert such share of Convertible Preferred Stock into the kind and Exhibit D amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of Convertible Preferred Stock could have been converted immediately prior to the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or other assets upon completion of such transaction, the Company Corporation shall provide or cause to be provided to each holder of Convertible Preferred Stock the right to elect the securities, cash or other assets into which the Convertible Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election).
(b) In case the Company Corporation shall (i) pay a dividend or make a distribution on its Common Stock in shares of its capital stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine the shares of its outstanding Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of its capital stock, then in each such case the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Convertible Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Company Corporation which such holder would have owned or have been entitled to receive after the happening of such event had such Convertible Preferred Stock been converted immediately prior to the record date for such event (or if no record date is established in connection with such event, the effective date for such action). An adjustment pursuant to this subparagraph (b) shall become effective immediately after the record date in the case of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.
(ci) In case the Company Corporation shall at any time prior issue Additional Shares of Common Stock (as defined herein) (including, without limitation, Additional Shares of Common Stock deemed to February 23, 2001 (i) except be issued pursuant to (ASection 8(c)(iii)) 1,103,667 options and 3,634,208 warrants outstanding as of the date hereof without consideration or (B) securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, dated February 24, 1998, between the Company and Harvest States Cooperatives (the "Stock Purchase Agreement"), issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Current Market Price in effect (as defined herein) calculated as provided herein as of the date of and immediately prior to the time of such issuance or sale, (ii), except for securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, issue or sell any warrants, options or other rights to acquire shares of its Common Stock at a purchase price less than the Conversion Price in effect immediately prior to the time of such issuance or sale, or (iii) issue or sell any other securities that are convertible into shares of Common Stock for a purchase or exchange price less than the Conversion Price in effect immediately prior to the time of such issuance or sale then, upon such issuance or sale, the Conversion Rate shall be increased by reducing the Conversion Price to the price at which such shares of Common Stock are being issued or sold by the Company or the price at which such other securities are exercisable or convertible into shares of the Company's Common Stock, and then adjusting the Conversion Rate to $1,000.00 divided by the new Conversion Price.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding any rights or warrants to purchase securities of the Company referred to in subparagraph (c) above, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in subparagraph (b) above)issue, then in each such case the Conversion Rate then in effect on such issue date shall be adjusted in accordance with the formula C1 Exhibit D O + N C\\1\\ = C x O + N x P ----- M where C\\1\\ = the adjusted Conversion Rate. C = the current Conversion Rate. O = the number of shares of Common Stock outstanding immediately prior to such issue. N = the number of additional shares of Common Stock offered. P = the offering price per share of the additional shares. M = the Current Market Price per share of Common Stock on immediately prior to such issue. For the record date mentioned below. F = the amount purpose of such cash dividend and/or the fair market value on the record date of the assetscalculation, securities, rights or warrants to be distributed divided by the number of shares of Common Stock outstanding immediately prior to such issue shall be calculated on the record date. The Board a fully diluted basis, as if all shares of Directors Convertible Preferred Stock and all Convertible Securities had been fully converted into shares of the Company shall determine in good faith Common Stock immediately prior to such fair market value. Such adjustment shall become effective immediately after the record date issuance and any outstanding warrants, options or other rights for the determination purchase of shareholders entitled shares of stock or convertible securities had been fully exercised immediately prior to receive such dividend or distributionissuance (and the resulting securities fully converted into shares of Common Stock, if so convertible) as of such date.
(eii) All calculations hereunder shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be.
(f) In the event that at any time, as a result of an adjustment made pursuant to subparagraph(a) or (b) above, the holder of any Preferred Stock thereafter surrendered for conversion shall become entitled to receive securities, cash or assets other than Common Stock, the number or amount of such securities or property so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in subparagraphs (a) through (e) above. Except as otherwise provided above in this Section 8, no adjustment in the Conversion Rate shall be made in respect of any conversion for share distributions or dividends theretofore declared and paid or payable on the Common Stock. Whenever the Conversion Rate is adjusted, the Company shall give notice by mail at the time of, and together with, the next dividend payment to the holders of record of Preferred Stock, setting forth the adjustment and the new Conversion Rate. Notwithstanding the foregoing notice provisions, failure by the Company to give such notice or a defect in such notice shall not affect the binding nature of such corporate action of the Company. Whenever the Company shall propose to take any of the actions specified in subparagraphs (a), (b), (c) or (d) of the first paragraph For purposes of this Section 8 which would result in any adjustment in the Conversion Rate8(c), the Company following definitions shall cause a notice to be mailed at least 30 days prior to the date on which the books of the Company will close or on which a record will be taken for such action to the holders of record of the outstanding Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Company and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure by the Company to give such notice or any defect in such notice shall not affect the validity of the transaction. Notwithstanding any other provision of this Section 8, no adjustment in the Conversion Rate need be made apply: (A) for a change in par value of the "Options" shall mean rights, options or warrants to subscribe ------- for, purchase or otherwise acquire either Common Stock not involving a subdivision or combination described in clause (ii) or (iii) of subparagraph (b) of the first paragraph of this Section 8 or Convertible Securities; (B) "Convertible Securities" shall mean any evidences of ---------------------- indebtedness, shares or other securities convertible into or exchangeable for Common Stock; (C) "Additional Shares of Common Stock" shall mean all shares of --------------------------------- Common Stock issued (or, pursuant to Section 8(c)(iii), deemed to be issued) by the Corporation after the [issue date of the Convertible Preferred Stock], other than shares of Common Stock becomes convertible solely into cash (and no interest shall accrue on the cash).issued or issuable:
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (New Century Financial Corp)
Adjustments to Conversion Rate. Notwithstanding anything in this Section 8 to the contrary, no change in the Conversion Rate shall be made until the cumulative effect of the adjustments called for by this Section 8 since the date of the last change in the Conversion Rate would change the Conversion Rate by more than 1%. However, once the cumulative effect would result in such a change, then the Conversion Rate shall be changed to reflect all adjustments called for by this Section 8 and not previously made. Subject to the foregoing, the Conversion Rate shall be adjusted from time to time as follows:
(a) In case of any consolidation or merger of the Company with any other corporation (other than a wholly owned subsidiary of the Company), or in case of any sale or transfer of all or substantially all of the assets of the Company, or in case of any share exchange pursuant to which all of the outstanding shares of Common Stock are converted into other securities or property, the Company shall, prior to or at the time of such transaction, make appropriate provision or cause appropriate provision to be made so that holders of each share of Preferred Stock then outstanding shall have the right thereafter to convert such share of Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of Preferred Stock could have been converted immediately prior to the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or other assets upon completion of such transaction, the Company shall provide or cause to be provided to each holder of Preferred Stock the right to elect the securities, cash or other assets into which the Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election).
(b) In case the Company shall (i) pay a dividend or make a distribution on its Common Stock in shares of its capital stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine the shares of its outstanding Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of its capital stock, then in each such case the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Company which such holder would have owned or have been entitled to receive after the happening of such event had such Preferred Stock been converted immediately prior to the record date for such event (or if no record date is established in connection with such event, the effective date for such action). An adjustment pursuant to this subparagraph (b) shall become effective immediately after the record date in the case of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.
(c) In case the Company shall at any time prior to February 23, 2001 (i) ), except pursuant to (A) 1,103,667 options and 3,634,208 warrants outstanding as of the date hereof or (B) securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, dated February 24, 1998, between the Company and Harvest States Cooperatives (the "Stock Purchase Agreement"), issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issuance or sale, (ii), except for securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, issue or sell any warrants, options or other rights to acquire shares of its Common Stock at a purchase price less than the Conversion Price in effect immediately prior to the time of such issuance or sale, or (iii) issue or sell any other securities that are convertible into shares of Common Stock for a purchase or exchange price less than the Conversion Price in effect immediately prior to the time of such issuance or sale then, upon such issuance or sale, the Conversion Rate shall be increased by reducing the Conversion Price to the price at which such shares of Common Stock are being issued or sold by the Company or the price at which such other securities are exercisable or convertible into shares of the Company's Common Stock, and then adjusting the Conversion Rate to $1,000.00 divided by the new Conversion Price.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding any rights or warrants to purchase securities of the Company referred to in subparagraph (c) above, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in subparagraph (b) above), then in each such case the Conversion Rate then in effect shall be adjusted in accordance with the formula C1 M C(1) = C x ----- M - F where C(1) = the adjusted Conversion Rate. C = the current Conversion Rate. M = the Current Market Price per share of Common Stock on the record date mentioned below. F = the amount of such cash dividend and/or the fair market value on the record date of the assets, securities, rights or warrants to be distributed divided by the number of shares of Common Stock outstanding on the record date. The Board of Directors of the Company shall determine in good faith such fair market value. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution.
(e) All calculations hereunder shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be.
(f) In the event that at any time, as a result of an adjustment made pursuant to subparagraph(asubparagraph (a) or (b) above, the holder of any Preferred Stock thereafter surrendered for conversion shall become entitled to receive securities, cash or assets other than Common Stock, the number or amount of such securities or property so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in subparagraphs (a) through (e) above. Except as otherwise provided above in this Section 8, no adjustment in the Conversion Rate shall be made in respect of any conversion for share distributions or dividends theretofore declared and paid or payable on the Common Stock. Whenever the Conversion Rate is adjusted, the Company shall give notice by mail at the time of, and together with, the next dividend payment to the holders of record of Preferred Stock, setting forth the adjustment and the new Conversion Rate. Notwithstanding the foregoing notice provisions, failure by the Company to give such notice or a defect in such notice shall not affect the binding nature of such corporate action of the Company. Whenever the Company shall propose to take any of the actions specified in subparagraphs (a), (b), (c) or (d) of the first paragraph of this Section 8 which would result in any adjustment in the Conversion Rate, the Company shall cause a notice to be mailed at least 30 days prior to the date on which the books of the Company will close or on which a record will be taken for such action to the holders of record of the outstanding Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Company and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure by the Company to give such notice or any defect in such notice shall not affect the validity of the transaction. Notwithstanding any other provision of this Section 8, no adjustment in the Conversion Rate need be made (A) for a change in par value of the Common Stock not involving a subdivision or combination described in clause (ii) or (iii) of subparagraph (b) of the first paragraph of this Section 8 or (B) after the Preferred Stock becomes convertible solely into cash (and no interest shall accrue on the cash).
Appears in 1 contract
Sources: Stock Purchase Agreement (Harvest States Cooperatives)
Adjustments to Conversion Rate. Notwithstanding anything in this Section 8 The Conversion Rate of each series of Securities shall be adjusted from time to time by the Company as follows:
(a) If the Company shall at any time prior to the contraryStated Maturity subdivide the shares of Common Stock, no change in by split-up or otherwise, or combine the Conversion Rate shall be made until the cumulative effect shares of the adjustments called for by this Section 8 since the date Common Stock, or issue additional shares of the last change in the Conversion Rate would change the Conversion Rate by more than 1%. However, once the cumulative effect would result in such Common Stock as a change, then the Conversion Rate shall be changed to reflect all adjustments called for by this Section 8 and not previously made. Subject to the foregoingdividend, the Conversion Rate shall be adjusted from time by multiplying the Conversion Rate in effect immediately prior to time as follows:
(a) In case of any consolidation or merger of the Company with any other corporation (other than such event by a wholly owned subsidiary of the Company), or in case of any sale or transfer of all or substantially all of the assets of the Company, or in case of any share exchange pursuant to which all of the outstanding shares of Common Stock are converted into other securities or propertyfraction, the Company shall, prior to or at the time numerator of such transaction, make appropriate provision or cause appropriate provision to which shall be made so that holders of each share of Preferred Stock then outstanding shall have the right thereafter to convert such share of Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into outstanding immediately after such event, and the denominator of which such share of Preferred Stock could have been converted immediately prior to shall be the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder number of shares of Common Stock is entitled immediately prior to elect to receive either securitiessuch event. Any adjustment under this Section 12.2(a) shall become effective at the close of business on the date the subdivision or combination becomes effective, cash or other assets upon completion as of the Dividend Record Date of such transactiondividend, or in the Company shall provide or cause to be provided to each holder event that no record date is fixed, upon the making of Preferred Stock the right to elect the securities, cash or other assets into which the Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election)dividend.
(b) In case Notwithstanding the foregoing, no adjustment shall be made hereunder, nor shall an adjustment be made to the ability of a Holder of a Security to convert, for any distribution described herein if the Holder will otherwise participate on an as-converted basis in the distribution without conversion of such Holder’s Securities.
(c) The Company shall may (ibut is not required to) pay make such increases in the Conversion Rate, in addition to those required by Section 12.2(a) as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or make a distribution on its Common Stock in of shares of its capital stock, (iior rights to acquire shares) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine the shares of its outstanding Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of its capital stock, then in each similar event treated as such case the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to income tax purposes. To the extent permitted by applicable law, the number and kind Company from time to time may increase the Conversion Rate by any amount for any period of at least 20 days if the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive.
(d) Except as stated herein, the Company will not adjust the Conversion Rate for the issuance of shares of capital stock Common Stock or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase shares of Common Stock or such convertible or exchangeable securities. For the avoidance of doubt, no adjustment to the Conversion Rate need be made:
(1) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company which such holder would have owned and the investment of additional optional amounts in shares of Common Stock under any plan;
(2) upon the issuance of any shares of Common Stock or have been entitled options or rights to receive after the happening purchase shares of such event had such Preferred Common Stock been converted immediately prior to the record date for such event (or if no record date is established in connection with such event, the effective date for such action). An adjustment pursuant to this subparagraph (b) shall become effective immediately after any present equity participation plan or employee, director or consultant benefit plan or program of or assumed by the record date in the case Company or any of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.its Subsidiaries;
(c3) In case upon the Company shall at issuance of any time prior to February 23, 2001 (i) except shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in (A2) 1,103,667 options above and 3,634,208 warrants outstanding as of the date hereof or the Securities were first issued;
(B4) securities issued for a change in compliance with Section 9(d) the par value of the Stock Purchase Agreement, dated February 24, 1998, between the Company and Harvest States Cooperatives (the "Stock Purchase Agreement"), issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issuance or sale, (ii), except for securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, issue or sell any warrants, options or other rights to acquire shares of its Common Stock at a purchase price less than the Conversion Price in effect immediately prior to the time of such issuance or sale, or (iii) issue or sell any other securities that are convertible into shares of Common Stock for a purchase or exchange price less than the Conversion Price in effect immediately prior to the time of such issuance or sale then, upon such issuance or sale, the Conversion Rate shall be increased by reducing the Conversion Price to the price at which such shares of Common Stock are being issued or sold by the Company or the price at which such other securities are exercisable or convertible into shares of the Company's Common Stock, and then adjusting the Conversion Rate to $1,000.00 divided by the new Conversion Price.; or
(d5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding any rights or warrants to purchase securities of the Company referred to in subparagraph (c) above, any dividend or distribution paid in cash out of the retained earnings of the Company for accrued and any dividend or distribution referred to in subparagraph (b) above), then in each such case the Conversion Rate then in effect shall be adjusted in accordance with the formula C1 = the adjusted Conversion Rate. C = the current Conversion Rate. M = the Current Market Price per share of Common Stock on the record date mentioned below. F = the amount of such cash dividend and/or the fair market value on the record date of the assets, securities, rights or warrants to be distributed divided by the number of shares of Common Stock outstanding on the record date. The Board of Directors of the Company shall determine in good faith such fair market value. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distributionunpaid interest.
(e) [All calculations hereunder under this Article XII shall be made by the Company and shall be made to the nearest cent or to the nearest 1/100 one-ten thousandth (1/10,000) of a share, as the case may be.
(f) In the event that at any time, as a result of . The Company will not be required to make an adjustment made pursuant to subparagraph(a) or (b) above, the holder of any Preferred Stock thereafter surrendered for conversion shall become entitled to receive securities, cash or assets other than Common Stock, the number or amount of such securities or property so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in subparagraphs (a) through (e) above. Except as otherwise provided above in this Section 8, no adjustment in the Conversion Rate shall be made unless the adjustment would require a change of at least 1% in respect the Conversion Rate. However, the Company will carry forward any adjustments that are less than 1% of any conversion for share distributions the Conversion Rate and make such carried forward adjustments, regardless of whether aggregate adjustment is less than 1% within one year of the first such adjustment carried forward, upon redemption, upon conversion, upon a Change of Control or dividends theretofore declared and paid or payable on upon the Common Stock. Stated Maturity.]
(f) Whenever the Conversion Rate is adjustedadjusted as herein provided, the Company shall give notice by mail at promptly file with the time of, Trustee and together with, any Conversion Agent other than the next dividend payment to the holders of record of Preferred Stock, Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the new facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion RateRate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Notwithstanding the foregoing notice provisionsPromptly after delivery of such certificate, failure by the Company to give shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice or a defect in of such adjustment of the Conversion Rate to each Securityholder at his last address appearing on the Securities Register within 20 days after execution thereof. Failure to deliver such notice shall not affect the binding nature legality or validity of such corporate action of the Company. Whenever the Company shall propose to take any of the actions specified in subparagraphs (a), (b), (c) or (d) of the first paragraph of this Section 8 which would result in any adjustment in the Conversion Rate, the Company shall cause a notice to be mailed at least 30 days prior to the date on which the books of the Company will close or on which a record will be taken for such action to the holders of record of the outstanding Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Company and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure by the Company to give such notice or any defect in such notice shall not affect the validity of the transaction. Notwithstanding any other provision of this Section 8, no adjustment in the Conversion Rate need be made (A) for a change in par value of the Common Stock not involving a subdivision or combination described in clause (ii) or (iii) of subparagraph (b) of the first paragraph of this Section 8 or (B) after the Preferred Stock becomes convertible solely into cash (and no interest shall accrue on the cash)adjustment.
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Adjustments to Conversion Rate. Notwithstanding anything in this Section 8 (i) Adjustment to the contrary, no change in the Conversion Rate shall be made until due to Stock Splits, Stock Dividend or Other Similar Event. If, prior to the cumulative effect conversion of all of the adjustments called for outstanding shares of Series C Preferred Stock, the number of outstanding shares of Common Stock is increased by this Section 8 since the date of the last change in the Conversion Rate would change the Conversion Rate by more than 1%. Howevera stock split, once the cumulative effect would result in such a change, then the Conversion Rate shall be changed to reflect all adjustments called for by this Section 8 and not previously made. Subject to the foregoingstock dividend or other similar event, the Conversion Rate shall be adjusted from time to time as follows:proportionately reduced, or if the number of outstanding shares of Common Stock is decreased by a combination or reclassification of shares, or other similar event, the Conversion Rate shall be proportionately increased.
(aii) In case Adjustment Due to Consolidation, Merger, Exchange of any consolidation Shares, Recapitalization, Reorganization or merger Other Similar Event. If, prior to the conversion of all of the outstanding shares of Series C Preferred Stock, there shall be a merger, consolidation, exchange of shares, recapitalization, reorganization or other similar event, as a result of which shares of Common Stock shall be changed into the same or a different number of shares of the same or another class or classes of stock or securities of the Company with any other corporation (other than a wholly owned subsidiary of the Company)or another entity, or in case of any there is a sale or transfer of all or substantially all of the Company's assets that is not deemed to be a liquidation, dissolution or winding up pursuant to Section 4(a), then the Holders thereafter shall have the right to receive upon conversion of the CompanySeries C Preferred Stock, or upon the basis and upon the terms and conditions specified herein and in case of any share exchange pursuant to which all lieu of the outstanding shares of Common Stock are converted into other immediately theretofore issuable upon conversion, such stock, securities or property, the Company shall, prior to or at the time of such transaction, make appropriate provision or cause appropriate provision to be made so that holders of each share of Preferred Stock then outstanding shall have the right thereafter to convert such share of Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of Preferred Stock could have been converted immediately prior to the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or and/or other assets upon completion of such transaction, the Company shall provide or cause to be provided to each holder of Preferred Stock the right to elect the securities, cash or other assets into which the Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election).
(b) In case the Company shall (i) pay a dividend or make a distribution on its Common Stock in shares of its capital stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine the shares of its outstanding Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of its capital stock, then in each such case the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Company which such holder Holder would have owned or have been entitled to receive after in such transaction had the happening of such event had such Series C Preferred Stock been converted immediately prior to the record date for such event (or if no record date is established in connection with such event, the effective date for such action). An adjustment pursuant to this subparagraph (b) shall become effective immediately after the record date in the case of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.
(c) In case the Company shall at any time prior to February 23, 2001 (i) except pursuant to (A) 1,103,667 options and 3,634,208 warrants outstanding as of the date hereof or (B) securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, dated February 24, 1998, between the Company and Harvest States Cooperatives (the "Stock Purchase Agreement"), issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issuance or sale, (ii), except for securities issued in compliance with Section 9(d) of the Stock Purchase Agreement, issue or sell any warrants, options or other rights to acquire shares of its Common Stock at a purchase price less than the Conversion Price in effect immediately prior to the time of such issuance or sale, or (iii) issue or sell any other securities that are convertible into shares of Common Stock for a purchase or exchange price less than the Conversion Price in effect immediately prior to the time of such issuance or sale then, upon such issuance or sale, the Conversion Rate shall be increased by reducing the Conversion Price to the price at which such shares of Common Stock are being issued or sold by the Company or the price at which such other securities are exercisable or convertible into shares of the Company's Common Stocktransaction, and then adjusting the Conversion Rate to $1,000.00 divided by the new Conversion Price.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding in any rights or warrants to purchase securities of the Company referred to in subparagraph (c) above, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in subparagraph (b) above), then in each such case the Conversion Rate then in effect shall be adjusted in accordance with the formula C1 = the adjusted Conversion Rate. C = the current Conversion Rate. M = the Current Market Price per share of Common Stock on the record date mentioned below. F = the amount of such cash dividend and/or the fair market value on the record date of the assets, securities, rights or warrants to be distributed divided by the number of shares of Common Stock outstanding on the record date. The Board of Directors of the Company shall determine in good faith such fair market value. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution.
(e) All calculations hereunder appropriate provisions shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be.
(f) In the event that at any time, as a result of an adjustment made pursuant to subparagraph(a) or (b) above, the holder of any Preferred Stock thereafter surrendered for conversion shall become entitled to receive securities, cash or assets other than Common Stock, the number or amount of such securities or property so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common rights and interests of the Holders of the Series C Preferred Stock contained to the end that the provisions hereof shall thereafter be applicable, as nearly as may be practicable in subparagraphs relation to any securities thereafter deliverable upon the exercise thereof. The Company shall not effect any transaction described in this Section 6(d)(ii) unless (a) through it first gives twenty (e20) above. Except as otherwise provided above in this Section 8days prior written notice of such merger, no adjustment in consolidation, exchange of shares, recapitalization, reorganization or other similar event (during which time the Conversion Rate Holder shall be made in respect entitled to convert its shares of any conversion for share distributions Series C Preferred Stock into Common Stock to the extent permitted hereby) and (b) the resulting successor or dividends theretofore declared and paid or payable on acquiring company (if not the Common Stock. Whenever Company) assumes by written instrument the Conversion Rate is adjusted, obligation of the Company shall give notice by mail at under this Certificate of Designation, including the time of, and together with, the next dividend payment to the holders of record of Preferred Stock, setting forth the adjustment and the new Conversion Rate. Notwithstanding the foregoing notice provisions, failure by the Company to give such notice or a defect in such notice shall not affect the binding nature of such corporate action of the Company. Whenever the Company shall propose to take any of the actions specified in subparagraphs (a), (b), (c) or (d) of the first paragraph obligations of this Section 8 which would result in any adjustment in the Conversion Rate, the Company shall cause a notice to be mailed at least 30 days prior to the date on which the books of the Company will close or on which a record will be taken for such action to the holders of record of the outstanding Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Company and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure by the Company to give such notice or any defect in such notice shall not affect the validity of the transaction. Notwithstanding any other provision of this Section 8, no adjustment in the Conversion Rate need be made (A) for a change in par value of the Common Stock not involving a subdivision or combination described in clause (ii) or (iii) of subparagraph (b) of the first paragraph of this Section 8 or (B) after the Preferred Stock becomes convertible solely into cash (and no interest shall accrue on the cash6(d)(ii).
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Sources: Agreement and Plan of Merger (Fusion Fund Inc /De/)