Conversion Procedure. (i) Prior to the conversion in accordance with this Section 5, the Company shall take all necessary steps to ensure that such number of shares of Common Stock as are issuable upon conversion are available for such issuance. (ii) Any such conversion shall be deemed to have been effected as of the close of business on the date on which a written conversion request is delivered from Lender to the Company specifying the amount of principal, or principal and interest, to be converted. At such time as such conversion has been effected, the rights of Lender as such Lender to the extent of the conversion shall cease, and Lender shall be deemed to have become the holder of record of the shares of Common Stock represented thereby. (iii) As soon as possible after a conversion has been effected (but in any event within thirty (30) business days), the Company shall deliver to Lender, a certificate or certificates representing the number of shares of Common Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender has specified to the Company in writing. (iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share. (v) The issuance of certificates for the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common Stock. Upon conversion, the Company shall take all such actions as are necessary in order to ensure that the shares of Common Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessable. (vi) The Company shall not close its books against the transfer of the shares of Common Stock issued or issuable upon conversion in any manner which interferes with the timely conversion. Lender, upon the request of the Company, shall assist and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required to be made by the Company). (vii) The Company shall take all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each issuance). (viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.
Appears in 6 contracts
Sources: Advances Loan Agreement (Eau Technologies, Inc.), Advances Loan Agreement (Eau Technologies, Inc.), Loan Agreement (Eau Technologies, Inc.)
Conversion Procedure. (ia) Prior In order to exercise the conversion privilege hereunder, Lender shall give a Conversion Notice in the form of Annex A (or such other notice which is acceptable to the conversion Company) to the Company.
(b) As promptly as practicable, but in accordance with this Section 5no event later than three (3) Business Days after a Conversion Notice is given, the Company shall take issue and shall deliver to Lender the number of full shares of Common Stock issuable upon such conversion.
(1) If Lender shall have given a Conversion Notice in accordance with the terms hereof, the Company's obligation to issue and deliver the shares of Common Stock upon such conversion shall be absolute and unconditional up to the amount of the outstanding Loan Indebtedness (but not to exceed the Conversion Limit), irrespective of any action or inaction by Lender to enforce the same, any waiver or consent with respect to any provision hereof or of the Loan Agreement, the recovery of any judgment against any person or any action to enforce the same, any failure or delay in the enforcement of any other obligation of the Company to Lender, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by Lender or any other person or entity of any obligation to the Company or any violation or alleged violation of law by Lender or any other person or entity, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to Lender in connection with such conversion; provided, however, that nothing herein shall limit or prejudice the right of the Company to pursue any such claim in any other manner permitted by applicable law.
(2) If in any case the Company shall fail to issue and deliver the shares of Common Stock to Lender upon Lender’s exercise of the Conversion Right in accordance with the terms of this Agreement and the Loan Agreement within five (5) Business Days after Lender gives the Conversion Notice, in addition to any other liabilities the Company may have hereunder and under applicable law (A) the Company shall pay or reimburse Lender on demand for all necessary steps out-of-pocket expenses, including, without limitation, reasonable fees and expenses of legal counsel, incurred by Lender as a result of such failure, (B) if as a result of such failure Lender shall suffer any damages or liabilities (including, without limitation, margin interest and the cost of purchasing securities to ensure that such number cover a sale (whether by Lender or Lender's securities broker) or borrowing of shares of Common Stock as are issuable by Lender for purposes of settling any trade involving a sale of shares of Common Stock made by Lender, then the Company shall upon conversion are available for such issuance.
(ii) Any such conversion shall be deemed demand of Lender pay to have been effected as Lender an amount equal to the damages and liabilities suffered by Lender by reason thereof which Lender documents to the reasonable satisfaction of the close of business on the date on which a written conversion request is delivered from Lender to the Company specifying the amount of principal, or principal and interest, to be converted. At such time as such conversion has been effected, the rights of Lender as such Lender to the extent of the conversion shall ceaseCompany, and (C) Lender shall be deemed may by written notice given at any time prior to have become the holder of record delivery to Lender of the shares of Common Stock represented thereby.
(iii) As soon as possible after a conversion has been effected (but in any event within thirty (30) business days), the Company shall deliver to Lender, a certificate or certificates representing the number of shares of Common Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender has specified to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(v) The issuance of certificates for the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion exercise of Lender's Conversion Right, rescind such exercise and the related issuance of the shares of Common Stock. Upon conversion, the Company shall take all such actions as are necessary in order to ensure that the shares of Common Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessableConversion Notice relating thereto.
(vi) The Company shall not close its books against the transfer of the shares of Common Stock issued or issuable upon conversion in any manner which interferes with the timely conversion. Lender, upon the request of the Company, shall assist and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required to be made by the Company).
(vii) The Company shall take all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.
Appears in 6 contracts
Sources: Loan and Security Agreement (Emagin Corp), Loan and Security Agreement (Emagin Corp), Loan and Security Agreement (Emagin Corp)
Conversion Procedure. (ia) Prior The Residual Amount may be converted, in whole or in part, any time and from time to time, prior to the Maturity Date. Such conversion in accordance with this Section 5shall be effectuated by the Company, issuing a signed notice of conversion (the "Notice of Conversion"). The date on which the Notice of Conversion is effective ("Conversion Date") shall be deemed to be the date on which the Holder has received from the Company shall take all necessary steps to ensure that such number a facsimile or original of shares the signed Notice of Common Stock as are issuable upon conversion are available for such issuance.
(ii) Any such conversion Conversion. Notwithstanding the above, any Notice of Conversion received on or after 4:00 P.M. EST shall be deemed to have been effected as Been received the following business day (receipt being via a confirmation of the close of business on the date on which a written conversion request is delivered from Lender time such facsimile to the Company specifying the amount of principal, or principal and interest, to be converted. At such time as such conversion has been effected, the rights of Lender as such Lender to the extent of the conversion shall cease, and Lender shall be deemed to have become the holder of record of the shares of Common Stock represented therebyHolder is received).
(iiib) As soon as possible after Common Stock to be Issued - Upon any conversion of the Note, and upon receipt by the Holder or its attorney of a conversion has been effected (but in any event within thirty (30) business days)facsimile or original of the Company's signed Notice of Conversion, the Company shall deliver instruct its transfer agent to Lenderissue stock certificates without restrictive legends or stop transfer instructions, a certificate if at that time the aforementioned registration statement described in Article 5.1 has been declared effective (or certificates with proper restrictive legends if the registration statement has not as yet been declared effective), in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion, as applicable. In the event that the Note is aged and deemed sellable under Rule 144, the Company shall, upon a Notice of Conversion, instruct the transfer agent to issue free trading certificates without restrictive legends, subject to other applicable securities laws. The Company is responsible for all costs associated with the issuance of the shares, excluding, but not limited to, fees associated with the opinion letter, FedEx of the certificates and any other costs that arise. The Company shall act as registrar and shall maintain an appropriate ledger containing the necessary information with respect to the Note. The Company warrants that no instructions, other than these instructions, have been given or will be given to the transfer agent and that the Common Stock shall otherwise be freely resold, except as may be set forth herein or subject to applicable law.
(excluding any fractional sharec) Conversion Rate - The Conversion Price for the Note shall be set at $0.0001
(d) Nothing contained in the Note shall be deemed to establish or require the payment of interest to the Holder at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Holder to the Company.
(e) It shall be the Company's responsibility to take all necessary actions and to bear all such costs to issue the Common Stock as provided herein, including the responsibility for the delivery of an opinion letter to the transfer agent, if so required. The Holder shall be treated as a shareholder of record on the date Common Stock is issued to the Holder. If the Holder shall designate another person as the entity in the name of which the stock certificates issuable by reason upon conversion of the Note are to be issued prior to the issuance of such conversion in such name or names and such denomination or denominations as Lender has specified certificates, the Holder shall provide to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, evidence that either no tax shall be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value due and payable as a result of such fractional share.
(v) The issuance of certificates for transfer or that the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance applicable tax in respect thereof or other cost incurred has been paid by the Company in connection with Holder or such conversion and the related issuance of the shares of Common Stockperson. Upon conversionsurrender of any Notes that are to be converted in part, the Company shall take all such actions as are necessary issue to the Holder a new Note equal to the unconverted amount, if so requested in order writing by the Holder.
(f) Within five (5) business days after receipt of the documentation referred to ensure that above in Article 5.2, the Company shall deliver a certificate for the number of shares of Common Stock issuable with respect upon the conversion. In the event the Company does not make delivery of the Common Stock as instructed by the Holder within five (5) business days after the Conversion Date, then in such event the Company shall pay to the Holder one percent (1%) in cash of the dollar value of the amount remaining on the Note after said conversion, compounded daily, per each day after the fifth (5th) business day following the Conversion Date that the Common Stock is not delivered to the Holder. The Company acknowledges that its failure to deliver the Common Stock within five (5) business days after the Conversion Date will cause the Holder to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Note a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such conversion damages, and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall be validly issued, fully paid and nonassessablenot relieve the Company from its obligations to deliver the Common Stock pursuant to the terms of this Note.
(vig) The Company shall at all times reserve (or make alternative written arrangements for reservation or contribution of shares) and have available all Common Stock necessary to meet conversion of the entire amount of the Note then outstanding. If, at any time the Company does not close its books against have sufficient authorized but unissued shares of Common Stock (or alternative shares of Common Stock as may be contributed by stockholders of the transfer Company) available to effect, in full, a conversion of the Note (a "Conversion Default," the date of such default being referred to herein as the "Conversion Default Date"), the Company shall issue to the Holder all of the shares of Common Stock issued which are available, and the Notice of Conversion as to any Note requested to be converted but not converted (the "Unconverted Note") may be deemed null and void upon written notice sent by the Company. The Company shall provide notice of such Conversion Default ("Notice of Conversion Default") to the Holder, by facsimile within three (3) business days of such default (with the original delivered by overnight mail or two day courier), and the Holder shall give notice to the Company by facsimile within five (5) business days of receipt of the original Notice of Conversion Default (with the original delivered by overnight mail or two day courier) of its election to either nullify or confirm the Notice of Conversion. The Company acknowledges that its failure to maintain a sufficient number of authorized but unissued shares of Common Stock to effect, in full, a conversion of the Note will cause the Holder to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Note a provision for liquidated damages.
(h) If, by the fifth (5th) business day after the Conversion Date of any portion of the Note to be converted (the "Delivery Date"), the transfer agent fails for any reason to deliver the Common Stock upon conversion by the Company and after such Delivery Date, the Holder purchases, in an open market transaction or otherwise, shares of Common Stock (the "Covering Shares") solely in order to make delivery in satisfaction of a sale of Common Stock by the Holder (the "Sold Shares"), which delivery such Holder anticipated to make using the Common Stock issuable upon conversion (a "Buy-In"), the Company shall pay to the Holder, in addition to any manner which interferes with other amounts due to the timely conversionHolder pursuant to this Note, and not in lieu thereof, the Buy-In Adjustment Amount (as defined below). LenderThe "Buy In Adjustment Amount" is the amount equal to the excess, upon if any, of (x) The Holder's total purchase price (including brokerage commissions, if any) for the request Covering Shares over (y) the net proceeds (after brokerage commissions, if any) received by the Holder from the sale of the CompanySold Shares. The Company shall pay the Buy-In Adjustment Amount to the Holder in immediately available funds within five (5) business days of written demand by the Holder. By way of illustration and not in limitation of the foregoing, shall assist and cooperate if the Holder purchases shares of Common Stock having a total purchase price (including brokerage commissions) of $11,000 to cover a Buy-In with respect to shares of Common Stock it sold for net proceeds of $10,000, the Buy-In Adjustment Amount which the Company in making will be required to pay to the Holder will be $1,000.
(i) The Company shall defend, protect, indemnify and hold harmless the Holder and all of its shareholders, officers, directors, employees, counsel, and direct or indirect investors and any required governmental filings of the foregoing person's agents or in obtaining any government approval prior to or in connection with the conversion other representatives (including, without limitation, making those retained in connection with the transactions contemplated by this Agreement, collectively, the "Article 5.3(i) Indemnitees") from and against any filings required and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Article 5.3(i) Indemnitee is a party to be the action for which indemnification hereunder is sought), and including reasonable attorneys' fees and disbursements (the "Article 5.3(i) Indemnified Liabilities"), incurred by any Article 5.3(i) Indemnitee as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by the Company in this Note or any other certificate, instrument or document contemplated hereby or thereby, (ii) any breach of any covenant, agreement or obligation of the Company contained in this Note or any other certificate, instrument, or document contemplated hereby or thereby, (iii) any cause of action, suit, or claim brought or made against such Article 5.3
(i) Indemnitee by a third party and arising out of or resulting from the execution, delivery, performance, or enforcement of the Note or any other certificate, instrument, or document contemplated hereby or thereby, (iv) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Common Stock underlying the Note, or (v) the status of the Holder or holder of the Note as an investor in the Company), except insofar as any such misrepresentation, breach or any untrue statement, alleged untrue statement, omission, or alleged omission is made in reliance upon and in conformity with written information furnished to the Company by the Holder which is specifically intended by the Holder to be relied upon by the Company, including for use in the preparation of any such registration statement, preliminary prospectus, or prospectus, or is based on illegal trading of the Common Stock by the Holder. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. The indemnity provisions contained herein shall be in addition to any cause of action or similar rights the Holder may have, and any liabilities the Holder may be subject to.
(viij) Furthermore if the Company elects to convert any portion of the outstanding balance of the Note(s) into shares of the Company's common stock it may do so at any time at its sole option. The Company shall take all such actions as may be necessary to assure that all such shares number of Common Stock issued may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by not have the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger Holder's common stock Holdings exceed 9.9% of the Company with or into another entity, or at any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.
Appears in 2 contracts
Sources: Side Letter Agreement (TWO HANDS Corp), Side Letter Agreement (TWO HANDS Corp)
Conversion Procedure. (i) Prior If this Note is to the conversion in accordance with this be automatically converted pursuant to Section 54(a), the Company shall take deliver written notice (the “Conversion Notice”) to Investor at the address last shown on the records of the Company for Investor or given by Investor to the Company for the purpose of notice, notifying Investor that the Company has elected to cause this Note to be converted pursuant to Section 4(a) hereof and specifying (a) the Conversion Price, (b) the principal amount of the Note, together with all necessary steps accrued and unpaid interest, (c) the date on which such conversion is expected to ensure occur (the date and time such conversion actually occurs, the “Conversion Date”) and (d) calling upon such Investor to surrender to the Company, in the manner and at the place designated, the Note. Investor agrees to deliver the original of this Note (or a notice to the effect that the original Note has been lost, stolen or destroyed and an agreement acceptable to the Company whereby the holder agrees to indemnify the Company from any loss incurred by it in connection with this Note) on or prior to the Conversion Date for cancellation; provided, however, that upon the Conversion Date, this Note shall be deemed converted and of no further force and effect, whether or not it is delivered for cancellation as set forth in this sentence. The Company shall, as soon as practicable thereafter (but in any event within ten (10) business days), issue and deliver to such Investor a certificate or certificates (or a notice of issuance of uncertificated shares, if applicable) for the number of shares to which Investor shall be entitled upon such conversion, including a check payable to Investor for any cash amounts payable as described in Section 4(b)(ii). Any conversion of Common Stock as are issuable upon conversion are available for such issuance.
(iithis Note pursuant to Section 4(a) Any such conversion shall be deemed to have been effected as of the close of business on the date on which a written conversion request is delivered from Lender made immediately prior to the Company specifying Conversion Date and on and after such date the amount of principal, or principal and interest, Persons entitled to be converted. At such time as such conversion has been effected, the rights of Lender as such Lender to the extent of the conversion shall cease, and Lender shall be deemed to have become the holder of record of receive the shares of Common Stock represented thereby.
(iii) As soon as possible after a conversion has been effected (but in any event within thirty (30) business days), the Company shall deliver to Lender, a certificate or certificates representing the number of shares of Common Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender has specified to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(v) The issuance of certificates for the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common Stock. Upon conversion, the Company shall take all such actions as are necessary in order to ensure that the shares of Common Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.
(vi) The Company shall not close its books against the transfer of the shares of Common Stock issued or issuable upon conversion in any manner which interferes with the timely conversion. Lender, upon the request of the Company, shall assist and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required to be made by the Company).
(vii) The Company shall take treated for all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, purposes as the case may be, (I) the date on which a record is to be taken for the purpose holder of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereofshares.
Appears in 2 contracts
Sources: Note Purchase Agreement (Silver Lake Group, L.L.C.), Note Purchase Agreement (Tintri, Inc.)
Conversion Procedure. (ia) Prior At any time and from time to time after November 24, 2007, and prior to the conversion payment of this Note in accordance with this Section 5full, the Company shall take holder of this Note may convert all necessary steps to ensure that such or any portion of the outstanding principal and/or accrued interest amount of this Note into a number of shares Common Shares (excluding any fractional share) determined by dividing the principal and/or accrued interest amount designated by such holder to be converted, by the Conversion Price then in effect; provided, that in no event shall any amount of accrued interest due on the Note be converted to Common Stock as are issuable upon conversion are available for such issuanceShares without the Company’s prior written consent, which it may withhold in its absolute discretion.
(iib) Any such Except as otherwise expressly provided herein, each conversion of this Note shall be deemed to have been effected as of the close of business on the date on which a written this Note has been surrendered for conversion request is delivered from Lender to at the Company specifying principal office of the amount of principal, or principal and interest, to be convertedCompany. At such time as such conversion has been effected, the rights of Lender the holder of this Note as such Lender holder to the extent of the conversion shall cease, and Lender the Person or Persons in whose name or names any certificate or certificates for Common Shares are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the shares of Common Stock Shares represented thereby.
(iiic) Notwithstanding any other provision hereof, if a conversion of any portion of this Note is to be made in connection with a registered public offering or a sale of the Company, the conversion of any portion of this Note may, at the election of the holder hereof, be conditioned upon the consummation of the public offering or the sale of the Company, in which case such conversion shall not be deemed to be effective until the consummation of such transaction.
(d) As soon as possible after a conversion has been effected (but in any event within thirty five (305) business daysdays in the case of clause (i) below), the Company shall deliver to Lender, the converting holder:
(i) a certificate or certificates representing the number of shares of Common Stock Shares (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender the converting holder has specified specified;
(ii) payment in an amount equal to the sum of all accrued interest with respect to the principal amount converted, which is not also being converted and has not been paid prior thereto, plus the amount payable under subsection (e) below; and
(iii) a new Note representing any portion of the principal amount which was represented by the Note surrendered to the Company in writingconnection with such conversion but which was not converted or which could not be converted because it would have required the issuance of a fractional share of Common Shares.
(ive) If any fractional share of Common Stock Shares would, except for the provisions hereof, be deliverable upon conversionconversion of this Note, the Company, in lieu of delivering such fractional share, shall in the event the conversion is being consummated in connection with repayment in full of the Note, pay in cash an amount equal to the value Market Price of such fractional shareshare as of the date of such conversion.
(vf) The issuance of certificates for the shares of Common Stock Shares upon conversion of this Note shall be made without charge to Lender the holder hereof for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common StockShares. Upon conversionconversion of this Note, the Company shall take all such actions as are necessary in order to ensure insure that the shares of Common Stock Shares issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.
(vig) The Company shall not close its books against the transfer of the shares of Common Stock Shares issued or issuable upon conversion of this Note in any manner which interferes with the timely conversionconversion of this Note.
(i) Despite anything above to the contrary, the holder may not convert this Note into Common Shares under this Article 6 during the time period and to the extent that the shares of the Company’s Common Stock that the holder could acquire upon the conversion would cause holder’s (or its controlling Person’s) Beneficial Ownership of the Company’s Common Shares to exceed 4.99% of the Company’s outstanding Common Shares (including Common Shares, if any, that holder has acquired, or, by exercise by the Company of its rights to effect payment in kind under Article 9, that holder has the right to acquire, under Article 9). LenderThe holder will, upon at the request of the Company, from time to time, notify the Company of holder’s computation of holder’s or its controlling Person’s Beneficial Ownership. The parties shall assist compute “Beneficial Ownership” of the Company’s Common Shares in accordance with Commission Rule 13d-3. Notwithstanding the foregoing, the limitation of 4.99% set forth in this paragraph shall not apply and cooperate a limitation of 9.99% shall, instead, apply on the same terms and conditions (i) during the period commencing with the Company’s provision of notice of an Organic Change pursuant to Section 6.5(b)(iii) and ending on the earlier of (a) the date holder gives notice to the Company that it waives irrevocably such temporary increase in making any required governmental filings its right to acquire Common Shares in respect of such Organic Change, (b) notice from the Company that it has determined in good faith that such Organic Change will not occur or (c) the date 30 days after such Organic Change; and (ii) at and after April 1, 2009. To the extent the holder requests conversion of principal or, with Company consent, accrued interest on the Note, and the Common Shares issuable upon such conversion would exceed the applicable limitation set forth in obtaining any government approval this Section 6.1(h)(i), then, first, the amount representing accrued interest, and, second (at the election of the Company, if prior to or maturity), the amount representing principal, that, in connection with the conversion (includingeither case, without limitation, making any filings required if converted would cause Common Shares in excess of such limitation to be made by issued, shall, instead, be paid in cash in the Companyactual amounts outstanding (and not based on the value of Common Shares otherwise issuable).
(viiii) The Unless the Company obtains the approval of its voting shareholders to such issuance in accordance with the rules of Nasdaq (in effect on the date hereof) with which the Company shall take all such actions as may be necessary required to assure that all such comply (but only to the extent required thereby), the Company shall not issue Common Shares upon conversion of the Note, which when added to the number of shares of Common Stock may be so Shares previously issued without violation by the Company (i) upon conversion of any applicable law the Note and (ii) in payment of the Note pursuant to Article 9 below, would exceed the greater (i) 19.99% of the number of shares of the Company’s Common Shares which were issued and outstanding on the Closing Date or governmental regulation or any requirements (ii) such number of any domestic securities exchange upon which Common Shares as shall have been expressly authorized by action of the Company’s shareholders in accordance with the Nasdaq marketplace rules (the “Maximum Issuance Amount”). In the event that the holder requests conversion of the Note such that would require the Company to issue shares of Common Stock may be listed (except for official notice Shares in excess of issuance which shall be immediately delivered by the Company upon each issuance).
(viii) If (A) Maximum Issuance Amount, the Company shall take a record honor such conversion request by (i) converting the Note into the number of the holders of its shares of Common Stock Shares stated in the conversion notice up to, but not in excess of, the Maximum Issuance Amount, and (or other securities ii) redeeming the number of shares of Common Shares stated in the conversion notice in excess of the Maximum Issuance Amount in cash at a price equal to the time receivable upon then-current fair market value (i.e., the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization closing bid price of the Company, any reclassification of ’s Common Stock on the equity interests of the Company, any consolidation or merger of the Company with or into another entityNasdaq System, or any conveyance of all if not then traded on the Nasdaq System, then on the OTC Bulletin Board as reported by ▇▇▇▇▇▇▇▇▇.▇▇▇, or substantially all of if this service is discontinued, such other reporting service acceptable to the assets of the Company to another entity; (Cholder) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) on the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereofredemption.
Appears in 2 contracts
Sources: Convertible Senior Subordinated Note Purchase Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Convertible Senior Subordinated Note Purchase Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Conversion Procedure. (i) Prior At any time and from time to time after June 12, 2002 and prior to the conversion payment of this Note in accordance with this Section 5full, the Company shall take holder of this Note may convert all necessary steps to ensure that such or any portion of the outstanding principal amount of this Note into a number of shares of Common the Conversion Stock (excluding any fractional share) determined by dividing the principal amount designated by such holder in a written notice of intention to convert as are issuable upon conversion are available for such issuancethe amount to be converted, by the Conversion Price then in effect. The holder of this Note shall give the Company 30 days notice of its intention to convert.
(ii) Any Each such conversion of this Note shall be deemed to have been effected as of the close of business on the date on which a written conversion request is delivered from Lender to this Note has been surrendered at the Company specifying principal office of the amount of principal, or principal and interest, to be convertedCompany. At such time as such conversion has been effected, the rights of Lender the holder of this Note as such Lender holder to the extent of the conversion shall cease, and Lender the Person or Persons in whose name or names any certificate or certificates for shares of Conversion Stock are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the shares of Common Conversion Stock represented thereby.
(iii) As soon as possible after a conversion has been effected (but in any event within thirty (30) five business days), the Company shall deliver to Lender, the converting holder:
(A) a certificate or certificates representing the number of shares of Common Conversion Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender the converting holder has specified specified;
(B) payment in an amount equal to the sum of all accrued interest with respect to the principal amount converted, which has not been paid prior thereto, plus the amount payable under subparagraph (iv) below; and
(C) a new Note representing any portion of the principal amount which was represented by the Note surrendered to the Company in writingconnection with such conversion but which was not converted.
(iv) If any fractional share of Common Conversion Stock would, except for the provisions hereof, be deliverable upon conversionconversion of this Note, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value Market Price of such fractional shareshare as of the date of such conversion.
(v) The issuance of certificates for the shares of Common Conversion Stock upon conversion of this Note shall be made without charge to Lender the holder hereof for any domestic documentary, stamp, transfer, excise or similarly related transactional tax relating to the issuance tax of securities in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common Conversion Stock. Upon conversionconversion of this Note, the Company shall take all such actions as are necessary in order to ensure that the shares of Common Conversion Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.
(vi) The Company shall not close its books against the transfer of the shares of Common Conversion Stock issued or issuable upon conversion of this Note in any manner which interferes with the timely conversionconversion of this Note. Lender, upon the request of the Company, The Company shall assist and cooperate with the Company in making any holder of this Note required to make any governmental filings or in obtaining obtain any government governmental approval prior to or in connection with the conversion of this Note (including, without limitation, making any filings required to be made by the Company).
(vii) The Company shall at all times reserve and keep available out of its authorized but unissued shares of Conversion Stock, solely for the purpose of issuance upon the conversion of the Note, such number of shares of Conversion Stock issuable upon the conversion of all outstanding Notes. All shares of Conversion Stock which are so issuable shall, when issued, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges. The Company shall take all such actions as may be necessary to assure that all such shares of Common Conversion Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Conversion Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.
Appears in 2 contracts
Sources: Convertible Subordinated Promissory Note (Travis Boats & Motors Inc), Subordinated Note Purchase Agreement (Travis Boats & Motors Inc)
Conversion Procedure. (ia) Prior The Residual Amount may be converted, in whole or in part, any time and from time to time, prior to the Maturity Date. Such conversion in accordance with this Section 5shall be effectuated by the Company, issuing a signed notice of conversion (the "Notice of Conversion"). The date on which the Notice of Conversion is effective ("Conversion Date") shall be deemed to be the date on which the Holder has received from the Company shall take all necessary steps to ensure that such number a facsimile or original of shares the signed Notice of Common Stock as are issuable upon conversion are available for such issuance.
(ii) Any such conversion Conversion. Notwithstanding the above, any Notice of Conversion received on or after 4:00 P.M. EST shall be deemed to have been effected as Been received the following business day (receipt being via a confirmation of the close of business on the date on which a written conversion request is delivered from Lender time such facsimile to the Company specifying the amount of principal, or principal and interest, to be converted. At such time as such conversion has been effected, the rights of Lender as such Lender to the extent of the conversion shall cease, and Lender shall be deemed to have become the holder of record of the shares of Common Stock represented therebyHolder is received).
(iiib) As soon as possible after Common Stock to be Issued - Upon any conversion of the Note, and upon receipt by the Holder or its attorney of a conversion has been effected (but in any event within thirty (30) business days)facsimile or original of the Company's signed Notice of Conversion, the Company shall deliver instruct its transfer agent to Lenderissue stock certificates without restrictive legends or stop transfer instructions, a certificate if at that time the aforementioned registration statement described in Article 5.1 has been declared effective (or certificates with proper restrictive legends if the registration statement has not as yet been declared effective), in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion, as applicable. In the event that the Note is aged and deemed sellable under Rule 144, the Company shall, upon a Notice of Conversion, instruct the transfer agent to issue free trading certificates without restrictive legends, subject to other applicable securities laws. The Company is responsible for all costs associated with the issuance of the shares, excluding, but not limited to, fees associated with the opinion letter, FedEx of the certificates and any other costs that arise. The Company shall act as registrar and shall maintain an appropriate ledger containing the necessary information with respect to the Note. The Company warrants that no instructions, other than these instructions, have been given or will be given to the transfer agent and that the Common Stock shall otherwise be freely resold, except as may be set forth herein or subject to applicable law.
(excluding any fractional sharec) Conversion Rate - The Conversion Price for the Note shall be set at $0.0001
(d) Nothing contained in the Note shall be deemed to establish or require the payment of interest to the Holder at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Holder to the Company.
(e) It shall be the Company's responsibility to take all necessary actions and to bear all such costs to issue the Common Stock as provided herein, including the responsibility for the delivery of an opinion letter to the transfer agent, if so required. The Holder shall be treated as a shareholder of record on the date Common Stock is issued to the Holder. If the Holder shall designate another person as the entity in the name of which the stock certificates issuable by reason upon conversion of the Note are to be issued prior to the issuance of such conversion in such name or names and such denomination or denominations as Lender has specified certificates, the Holder shall provide to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, evidence that either no tax shall be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value due and payable as a result of such fractional share.
(v) The issuance of certificates for transfer or that the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance applicable tax in respect thereof or other cost incurred has been paid by the Company in connection with Holder or such conversion and the related issuance of the shares of Common Stockperson. Upon conversionsurrender of any Notes that are to be converted in part, the Company shall take all such actions as are necessary issue to the Holder a new Note equal to the unconverted amount, if so requested in order writing by the Holder.
(f) Within five (5) business days after receipt of the documentation referred to ensure that above in Article 5.2, the Company shall deliver a certificate for the number of shares of Common Stock issuable with respect upon the conversion. In the event the Company does not make delivery of the Common Stock as instructed by the Holder within five (5) business days after the Conversion Date, then in such event the Company shall pay to the Holder one percent (1%) in cash of the dollar value of the amount remaining on the Note after said conversion, compounded daily, per each day after the fifth (5th) business day following the Conversion Date that the Common Stock is not delivered to the Holder. The Company acknowledges that its failure to deliver the Common Stock within five (5) business days after the Conversion Date will cause the Holder to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Note a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such conversion damages, and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall be validly issued, fully paid and nonassessablenot relieve the Company from its obligations to deliver the Common Stock pursuant to the terms of this Note.
(vig) The Company shall at all times reserve (or make alternative written arrangements for reservation or contribution of shares) and have available all Common Stock necessary to meet conversion of the entire amount of the Note then outstanding. If, at any time the Company does not close its books against have sufficient authorized but unissued shares of Common Stock (or alternative shares of Common Stock as may be contributed by stockholders of the transfer Company) available to effect, in full, a conversion of the Note (a "Conversion Default," the date of such default being referred to herein as the "Conversion Default Date"), the Company shall issue to the Holder all of the shares of Common Stock issued or issuable upon conversion in which are available, and the Notice of Conversion as to any manner which interferes with the timely conversion. Lender, upon the request of the Company, shall assist and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required Note requested to be made converted but not converted (the "Unconverted Note") may be deemed null and void upon written notice sent by the Company).
(vii) . The Company shall take all provide notice of such actions as may be necessary Conversion Default ("Notice of Conversion Default") to assure the Holder, by facsimile within three (3) business days of such default (with the original delivered by overnight mail or two day courier), and the Holder shall give notice to the Company by facsimile within five (5) business days of receipt of the original Notice of Conversion Default (with the original delivered by overnight mail or two day courier) of its election to either nullify or confirm the Notice of Conversion. The Company acknowledges that all such its failure to maintain a sufficient number of authorized but unissued shares of Common Stock may to effect, in full, a conversion of the Note will cause the Holder to suffer damages in an amount that will be so issued without violation difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Note a provision for liquidated damages.
(h) If, by the fifth (5th) business day after the Conversion Date of any applicable law or governmental regulation or portion of the Note to be converted (the "Delivery Date"), the transfer agent fails for any requirements of any domestic securities exchange upon which shares of reason to deliver the Common Stock may be listed (except for official notice of issuance which shall be immediately delivered upon conversion by the Company upon each issuance).
(viii) If (A) and after such Delivery Date, the Company shall take a record of the holders of its Holder purchases, in an open market transaction or otherwise, shares of Common Stock (or the "Covering Shares") solely in order to make delivery in satisfaction of a sale of Common Stock by the Holder (the "Sold Shares"), which delivery such Holder anticipated to make using the Common Stock issuable upon conversion (a "Buy-In"), the Company shall pay to the Holder, in addition to any other securities at amounts due to the time receivable upon Holder pursuant to this Note, and not in lieu thereof, the conversionBuy-In Adjustment Amount (as defined below). The "Buy In Adjustment Amount" is the amount equal to the excess, if any, of (x) The Holder's total purchase price (including brokerage commissions, if any) for the purpose of entitling them to receive any dividend or other distributionCovering Shares over (y) the net proceeds (after brokerage commissions, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (Bif any) there is proposed any capital reorganization received by the Holder from the sale of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.Sold
Appears in 2 contracts
Sources: Side Letter Agreement (TWO HANDS Corp), Side Letter Agreement (TWO HANDS Corp)
Conversion Procedure. (a) The right of conversion attaching to any Security may be exercised (i) Prior if such Security is represented by a Global Security, by book-entry transfer to the conversion Conversion Agent through the facilities of the Depositary in accordance with this the Applicable Procedures, or (ii) if such Security is represented by a Certificated Security, by delivery of such Security at the specified office of the Conversion Agent, accompanied, in either case, by: (1) a duly signed and completed conversion notice, in the form as set forth on the reverse of Security attached hereto as Exhibit A (a "CONVERSION NOTICE"); (2) if such Certificated Security has been lost, stolen, destroyed or mutilated, a notice to the Conversion Agent in accordance with Section 52.7 regarding the loss, theft, destruction or mutilation of the Security; (3) appropriate endorsements and transfer documents if required by the Conversion Agent; and (4) payment of any tax or duty, in accordance with Section 7.4, which may be payable in respect of any transfer involving the issue or delivery of the Common Stock in the name of a Person other than the Holder of the Security. The date on which the Holder satisfies all of those requirements is the "CONVERSION DATE." The Company shall deliver to the Holder through a Conversion Agent a certificate for the number of whole shares of Common Stock issuable upon the conversion and cash in lieu of any fractional shares pursuant to Section 7.3 as soon as practicable following the applicable Conversion Date.
(b) The person in whose name the Common Stock certificate is registered shall be deemed to be a stockholder of record on the Conversion Date; provided, however, that no surrender of a Security on any date when the stock transfer books of the Company shall take all necessary steps be closed shall be effective to ensure that constitute the person or persons entitled to receive the shares of Common Stock upon such number conversion as the record holder or holders of such shares of Common Stock on such date, but such surrender shall be effective to constitute the person or persons entitled to receive such shares of Common Stock as are issuable upon conversion are available the record holder or holders thereof for such issuance.
(ii) Any such conversion shall be deemed to have been effected as of all purposes at the close of business on the date next succeeding day on which a written conversion request is delivered from Lender to the Company specifying the amount of principalsuch stock transfer books are open; provided further, or principal and interesthowever, to be converted. At such time as such conversion has been effected, the rights of Lender as such Lender to the extent of the conversion shall cease, and Lender shall be deemed to have become the holder of record of the shares of Common Stock represented thereby.
(iii) As soon as possible after a conversion has been effected (but in any event within thirty (30) business days), the Company shall deliver to Lender, a certificate or certificates representing the number of shares of Common Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender has specified to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(v) The issuance of certificates for the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common Stock. Upon conversion, the Company shall take all such actions as are necessary in order to ensure that the shares of Common Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.
(vi) The Company shall not close its at the Conversion Rate in effect on the date on which such Security was delivered as if the stock transfer books against the transfer of the Company had not been closed. Upon conversion of a Security, such person shall no longer be a Holder of such Security. No separate payment or adjustment will be made for accrued and unpaid interest on a converted Security or for dividends or distributions on shares of Common Stock issued or issuable upon conversion of a Security except as provided in any manner which interferes with the timely conversion. Lender, upon the request of the Company, shall assist and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required to be made by the Company)this Indenture.
(viic) The Company shall take all such actions as may be necessary to assure Upon surrender of a Security that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each issuance).
(viii) If (A) is converted in part, the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take placeexecute, and the timeTrustee shall authenticate and deliver to the Holder, if any is to be fixed, as of which the holders of record a new Security equal in principal amount of the shares unconverted portion of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereofSecurity surrendered.
Appears in 1 contract
Sources: Indenture (Unisource Energy Corp)
Conversion Procedure. (i) Prior to the i. Each conversion in accordance with this Section 5, the Company shall take all necessary steps to ensure that such number of shares of Common Stock as are issuable upon conversion are available for such issuance.
(ii) Any such conversion Series A Preferred shall be deemed to have been effected as of the close of business on the date on which a written conversion request is delivered from Lender to the Company specifying certificate or certificates representing the amount of principal, or principal and interest, Series A Preferred to be convertedconverted have been surrendered for conversion at the principal office of the Corporation. At such the time as any such conversion has been effected, the rights of Lender as such Lender to the extent holder of the shares of Series A Preferred converted as a holder of Series A Preferred shall cease and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock are to be issued upon such conversion shall cease, and Lender (the "Conversion Shares") shall be deemed to have become the holder or holders of record of the shares of Common Stock represented thereby.
(iii) As soon as possible after a conversion has been effected (but in any event within thirty (30) business days), the Company shall deliver to Lender, a certificate or certificates representing the number of shares of Common Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender has specified to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(v) ii. The issuance of certificates for the shares of Common Stock upon conversion Conversion Shares shall be made without charge to Lender the holders of such Series A Preferred for any issuance tax in respect thereof or other cost incurred by the Company Corporation in connection with such conversion and the related issuance of the shares of Common Stock.
iii. The Corporation will at no time close its transfer books against the transfer of any shares of Series A Preferred or of any share of Common Stock issued or issuable upon conversion of any shares of Series A Preferred in any manner which interferes with the timely conversion of such shares of Series A Preferred, except as may otherwise be required to comply with applicable securities or tax laws.
iv. Upon conversionconversion of each share of Series A Preferred, the Company Corporation shall take all such actions as are necessary in order to ensure insure that the shares of Common Stock issuable with respect to such conversion Conversion Shares shall be validly issued, fully paid and nonassessable.
(vi) The Company shall not close its books against the transfer of the shares of Common Stock issued or issuable upon conversion in any manner which interferes with the timely conversion. Lender, upon the request of the Company, shall assist free and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required to be made by the Company).
(vii) The Company shall take all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance clear of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolutiontaxes, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities thenliens, charges and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance encumbrances with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior respect to the transaction in question and not less than 10 days prior to the record date in respect issuance thereof.
Appears in 1 contract
Conversion Procedure. (i) Prior At any time prior to the conversion payment of this Note in accordance with this Section 5full, the Company shall take holder of this Note may convert all necessary steps to ensure that such or any portion of the outstanding principal and/or accrued interest amount of this Note (including any Accreted Principal Amount, PIK Amounts and Default PIK Amounts) into a number of shares Common Shares (excluding any fractional share) determined by dividing the principal and/or Accreted Principal Amount (including PIK Amounts and Default PIK Amounts) designated by such holder to be converted, by the Conversion Price (as specified in Section 6.2 below) then in effect. For the avoidance of Common Stock as are issuable doubt, the holder of this Note shall be entitled to receive, upon conversion are available of this Note, Common Shares equal to the sum of (x) the principal amount being converted (including any PIK Amounts and Default PIK Amounts) divided by the Conversion Price then in effect (as adjusted for such issuance.
(ii) Any such any stock dividends, stock splits or Organic Change described in Section 6.5 below). Except as otherwise expressly provided herein, each conversion of this Note shall be deemed to have been effected as of the close of business on the date on which a written this Note has been surrendered for conversion request is delivered from Lender to at the principal office of the Company specifying (such date, the amount of principal, or principal and interest, to be converted"Conversion Date"). At such time as such conversion has been effected, the rights of Lender the holder of this Note as such Lender holder to the extent of the conversion shall cease, and Lender the Person or Persons in whose name or names any certificate or certificates for Common Shares are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the shares Common Shares represented thereby. Notwithstanding anything herein to the contrary, the Company may not issue, upon conversion of this Note, a number of Common Stock represented thereby.
Shares which, when aggregated with any Common Shares issued to the Purchaser on or after the date hereof and prior to such Conversion Date in connection with any notes issued by the Company pursuant to (i) the Credit Agreement, (ii) that certain convertible promissory note dated August 3, 2009 in the principal amount of $6,639,058 or (iii) that certain third amended and restated convertible promissory note dated August 3, 2009 in the principal amount of $7,171,441, would exceed 19.99% of the Company's issued and outstanding Common Shares as of the date of issuance of such Common Shares (such number of shares, the "Issuable Maximum"), if such issuance would be in violation of applicable Nasdaq Marketplace Rules (or any other exchange on which the Common Shares are then listed). As soon as possible after a conversion has been effected (but in any event within thirty five (305) business daysdays of the Conversion Date), the Company shall deliver to Lender, the converting holder: a certificate or certificates representing the number of shares of Common Stock Shares (excluding any fractional share) issuable by reason of such conversion (including any Accreted Principal Amount, PIK Amounts, Default PIK Amounts and Make-Whole Amount) in such name or names and such denomination or denominations as Lender the converting holder has specified specified; such number of Common Shares as shall be determined by dividing (x) the Accreted Principal Amount (plus any PIK Amount and Default PIK Amounts) with respect to the principal amount converted, plus the amount payable under subsection (e) below, by (y) the Conversion Price; and a new Note representing any portion of the principal amount which was represented by the Note surrendered to the Company in writing.
(iv) connection with such conversion but which was not converted or which could not be converted because it would have required the issuance of a fractional share of Common Shares; provided, however, that for purposes of this Section 6.1(d), the Company shall only be entitled to deliver Common Shares to the converting holder if such Common Shares would not be in excess of the Issuable Maximum or otherwise cause the converting holder to exceed the Beneficial Ownership Limitation. If any fractional share of Common Stock Shares would, except for the provisions hereof, be deliverable upon conversionconversion of this Note, the Company, in lieu of delivering such fractional share, shall in the event the conversion is being consummated in connection with repayment in full of the Note, pay in cash an amount equal to the value Market Price of such fractional share.
(v) share as of the date of such conversion. The issuance of certificates for the shares of Common Stock Shares upon conversion of this Note shall be made without charge to Lender the holder hereof for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common StockShares. Upon conversionconversion of this Note, the Company shall take all such actions as are necessary in order to ensure insure that the shares of Common Stock Shares issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.
(vi) . The Company shall not close its books against the transfer of the shares of Common Stock Shares issued or issuable upon conversion of this Note in any manner which interferes with the timely conversionconversion of this Note. LenderThe Company shall not effect any conversion of this Note, upon and the request holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, the holder (together with such holder's affiliates, and any other person or entity acting as a group together with the holder or any of its affiliates) would beneficially own in excess of the CompanyBeneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the holder and its affiliates shall assist include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (A) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the holder or any of its affiliates and cooperate with (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company in making any required governmental filings subject to a limitation on conversion or in obtaining any government approval prior exercise analogous to or in connection with the conversion limitation contained herein (including, without limitation, making any filings required other Notes) beneficially owned by the holder or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this Section 6.1(h), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6.1(h) applies, the determination of whether this Note is convertible (in relation to other securities owned by the holder together with any affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the holder, and the submission of a Notice of Conversion shall be deemed to be made the holder's determination of whether this Note may be converted (in relation to other securities owned by the Company).
(viiholder together with its affiliates) The and which principal amount of this Note is convertible, in each case subject to such aggregate percentage limitations. To ensure compliance with this restriction, the holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph, and the Company shall take all have no obligation to verify or confirm the accuracy of such actions determination. In addition, a determination as may to any "group" status as contemplated above shall be necessary to assure that all such determined in accordance with Section 13(d) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder. For purposes of this Section 6.1(h), in determining the number of outstanding shares of Common Stock Stock, the holder may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by rely on the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion number of outstanding shares of Common Stock into any other type as stated in the most recent of securities then, and in each such case, the Company will mail following: (A) the Company's most recent Quarterly Report on Form 10-Q or cause to be mailed to Lender a notice in accordance with Section 13 specifyingAnnual Report on Form 10-K, as the case may be, ; (IB) a more recent public announcement by the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, Company; or (IIC) a more recent notice by the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption Company or conversion is to take place, and the time, if any is to be fixed, as Company's transfer agent setting forth the number of which the holders of record of the shares of Common Stock (outstanding. Upon the written or at oral request of the time receivable upon holder, the conversion) Company shall be entitled within two Trading Days confirm orally and in writing to exchange their the holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the holder or its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The "Beneficial Ownership Limitation" shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note (or such other securities) for securities or shares of Common Stock issuable upon conversion of other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior convertible notes issued by the Company to the transaction Purchaser) held by the holder. The limitations contained in question and not less than 10 days prior this paragraph shall apply to the record date in respect thereofa successor holder of this Note.
Appears in 1 contract
Sources: Convertible Promissory Note (Quantum Fuel Systems Technologies Worldwide Inc)
Conversion Procedure. The Company shall use its reasonable best efforts to cause its transfer agent to issue the Common Stock within three (i3) Prior business days after the Company receives a fully executed Notice of Conversion and original certificates for the Debenture. The Company shall bear the cost associated with the issuance of the Common Stock. The Common Stock shall be issued with a restrictive legend indicating that it was issued in a transaction which is exempt from registration under the Securities Act of 1933, as amended, and that it cannot be transferred unless it is so registered, or an exemption from registration is available, in the opinion of counsel to the conversion Company. The Common Stock shall be issued in accordance the same name as the person who is the Holder of this Debenture unless, in the opinion of counsel to the Company, such transfer can be made in compliance with this Section 5, applicable securities laws. The person in whose name the Company shall take all necessary steps to ensure that such number of shares certificates of Common Stock are so registered shall be treated as a common stockholder of the Company on the date the Common Stock certificates are issuable upon conversion are available for so issued. With respect to Mandatory Conversion, each Holder of a Debenture shall deliver to the Company the appropriate Debenture promptly after the Company's delivery of the Notice of Conversion. In the event a Holder of a Debenture fails to deliver the Debenture after the Company's delivery of the Notice of Conversion, such issuance.
(ii) Any such conversion Debenture shall be deemed to have been effected converted into Common Stock at the Conversion Price on the Conversion Date and shall be issued and held by the Company until the appropriate certificates for the Debentures are presented for cancellation. The certificates representing the Debenture shall be cancelled, as reflected in the records of the close of business Company on the date on which a written conversion request is delivered from Lender to the Company specifying the amount of principal, or principal and interest, to be converted. At such time as such conversion has been effected, the rights of Lender as such Lender to the extent of the conversion shall cease, and Lender shall be deemed to have become the holder of record of the shares of Common Stock represented thereby.
(iii) As soon as possible after a conversion has been effected (but in any event within thirty (30) business days), the Company shall deliver to Lender, a certificate or certificates representing the number of shares of Common Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender has specified to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(v) The issuance of certificates for the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common Stock. Upon conversion, the Company shall take all such actions as are necessary in order to ensure that the shares of Common Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.
(vi) The Company shall not close its books against the transfer of the shares of Common Stock issued or issuable upon conversion in any manner which interferes with the timely conversion. Lender, upon the request of the Company, shall assist and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required to be made by the Company).
(vii) The Company shall take all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.
Appears in 1 contract
Conversion Procedure. (a) Unless otherwise provided in this Agreement, each conversion of Common Units of one class into Common Units of the other class shall be effected by (i) Prior delivery to the conversion in accordance with this Section 5, principal office of the Company shall take all necessary steps to ensure a written notice by the Member holding such Common Units stating that such Member desires to convert the number of shares Common Units stated in the notice into Common Units of the other class (and such statement shall obligate the Company to issue such Common Stock as are issuable upon conversion are available for such issuance.
Units) and (ii) Any such ), if the Common Units are represented by certificates, surrender of the certificate or certificates representing the Common Units to be converted. Unless otherwise provided in connection with any conversion, each conversion shall be deemed to have been effected as of the close of business on the date on which a written conversion request is delivered from Lender to the Company specifying the amount of principal, or principal and interest, to be converted. At such time as such conversion notice has been effectedreceived and, in the case of Common Units represented by certificates, such certificate or certificates have been surrendered, and at such time, the rights of Lender the Member holding the converted Common Units as such Lender holder shall cease and the Person or Persons in whose name or names, in the case of uncertificated Common Units being converted into, will appear in the Company’s books and records or, in the case of certificated Common Units being converted into, the certificate or certificates for shares of Common Units to the extent of the conversion shall ceasebe issued upon such conversion, and Lender shall be deemed to have become the holder or holders of record of the shares of Common Stock Units represented thereby.
(iiib) As soon Promptly after the conversion of Common Units is deemed effective as possible after a conversion has been effected (but set forth in any event within thirty (30) business days)the immediately preceding paragraph, in the case of uncertificated Common Units, the Company shall promptly reflect such conversion of Common Units in its books and records and, in the case of certificated Common Units, the Company shall issue and deliver to Lender, a in accordance with the surrendering Member’s instructions (i) the certificate or certificates representing for the number of shares of Common Stock (excluding any fractional share) Units issuable by reason of upon such conversion in such name and (ii) a certificate representing any Common Units which were represented by the certificate or names and such denomination or denominations as Lender has specified certificates delivered to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(v) The issuance of certificates for the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common Stock. Upon conversion, the Company shall take all such actions as are necessary in order to ensure that the shares of Common Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessablebut which were not converted.
(vic) The Company shall not close its books against the transfer of the shares of Common Stock issued or issuable upon conversion Units in any manner which interferes would interfere with the timely conversionconversion of any Common Units. Lender, upon the request of the Company, The Company shall assist and cooperate with the Company in making any holder of Common Units required to make any governmental filings or in obtaining obtain any government governmental approval prior to or in connection with the any conversion of Common Units hereunder (including, without limitation, making any filings required to be made by the Company).
(viid) The If the Company shall take all such actions as may be necessary to assure that all such shares in any manner subdivides or combines the outstanding Common Units of one class, the outstanding Common Units of the other class of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which Units shall be immediately delivered by the Company upon each issuance)proportionately subdivided or combined in a similar manner.
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Norcross Safety Products LLC)
Conversion Procedure. (i) Prior to At any time on or before payment in full of the conversion in accordance with this Section 5principal and accrued interest outstanding hereunder, the Company shall take holder of this Note may convert all necessary steps to ensure that or any portion of the outstanding principal amount hereof (plus accrued but unpaid interest on such principal amount or portion thereof) held by such holder into a number of shares of the Company's Common Stock computed by dividing the principal amount of this Note (plus accrued but unpaid interest thereon) to be converted by the "Conversion Price" (as are issuable upon conversion are available for such issuancedefined below in Part 8B).
(ii) Any such Each conversion shall will be deemed to have been effected as of the close of business on the date on which a written conversion request is delivered from Lender to the Company specifying instrument representing this Note has been surrendered at the amount principal office of principal, or principal and interest, to be convertedthe Company. At such time as such conversion has been effected, the rights of Lender the holder of this Note as such Lender holder will cease and the person or persons in whose name or names any certificate or certificates for shares of Common Stock are to the extent of the be issued upon such conversion shall cease, and Lender shall will be deemed to have become the holder or holders of record of the shares of Common Stock represented thereby.
(iii) As soon as possible after a conversion has been effected (but in any event within thirty three (303) business daysdays in the case of subparagraph (a) below), the Company shall will deliver to Lender, the converting holder:
(a) a certificate or certificates representing the number of shares of Common Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender the converting holder has specified (provided that, in the event that the name specified by the converting holder is other than that of the converting holder, the Company has received evidence satisfactory to Company counsel that the transfer of Common Stock from the converting holder to the Company in writingperson specified may be accomplished without violation of applicable law);
(b) a replacement Note having terms identical to those of this Note other than the principal amount, which shall be equal to portion of the principal amount of the original Note not converted; and
(c) the amount payable under subparagraph (vi) below with respect to fractional shares of Common Stock otherwise issuable upon such conversion.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(v) The issuance of certificates for the shares of Common Stock upon conversion shall of this Note will be made without charge to Lender the holder of such Note for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common Stock. Upon conversionconversion of this Note, the Company shall will take all such actions as are necessary in order to ensure insure that the shares of Common Stock issuable with respect to such conversion shall will be validly issued, fully paid and nonassessable.
(viv) The Company shall will not close its books against the transfer of the shares this Note or of Common Stock issued or issuable upon conversion of this Note in any manner which interferes with the timely conversion of this Note.
(vi) If any fractional interest in a share of Common Stock would, except for the provisions of this subparagraph (vi), be deliverable upon any conversion of this Note, the Company, in lieu of delivering the fractional share therefor, may at its option pay a cash adjustment for such fractional share equal to such fraction times the fair market value per share of the Common Stock at the close of business on the date of conversion. Lender, upon as determined in good faith by the request board of directors of the Company, shall assist and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required to be made by the Company).
(vii) The Company shall take all such actions as may be necessary to assure that all such shares provisions of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which this part 8 shall be immediately delivered by the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior subject to the transaction in question and not less than 10 days prior to the record date in respect thereoflimitations imposed by section 2B hereof.
Appears in 1 contract
Conversion Procedure. (i) Prior At any time prior to the conversion payment of this Note in accordance with this Section 5full, the Company shall take holder of this Note may convert all necessary steps to ensure that such or any portion of the outstanding principal and/or accrued interest amount of this Note (including any Accreted Principal Amount, PIK Amounts and Default PIK Amounts) into a number of shares Common Shares (excluding any fractional share) determined by dividing the principal and/or Accreted Principal Amount (including PIK Amounts and Default PIK Amounts) designated by such holder to be converted, by the Conversion Price (as specified in Section 6.2 below) then in effect. For the avoidance of Common Stock as are issuable doubt, the holder of this Note shall be entitled to receive, upon conversion are available of this Note, Common Shares equal to the sum of (x) the principal amount being converted (including any PIK Amounts and Default PIK Amounts) divided by the Conversion Price then in effect (as adjusted for such issuance.
(ii) Any such any stock dividends, stock splits or Organic Change described in Section 6.5 below). Except as otherwise expressly provided herein, each conversion of this Note shall be deemed to have been effected as of the close of business on the date on which a written this Note has been surrendered for conversion request is delivered from Lender to at the principal office of the Company specifying (such date, the amount of principal, or principal and interest, to be converted"Conversion Date"). At such time as such conversion has been effected, the rights of Lender the holder of this Note as such Lender holder to the extent of the conversion shall cease, and Lender the Person or Persons in whose name or names any certificate or certificates for Common Shares are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the shares Common Shares represented thereby. Notwithstanding anything herein to the contrary, the Company may not issue, upon conversion of this Note, a number of Common Stock represented thereby.
Shares which, when aggregated with any Common Shares issued to the Purchaser on or after the date hereof and prior to such Conversion Date in connection with any notes issued by the Company pursuant to (i) the Credit Agreement, (ii) that certain convertible promissory note dated August 3, 2009 in the principal amount of $3,000,000 and (iii) that certain convertible promissory note dated August 3, 2009 in the principal amount of $6,639,058, would exceed 19.99% of the Company's issued and outstanding Common Shares as of the date of issuance of such Common Shares (such number of shares, the "Issuable Maximum"), if such issuance would be in violation of applicable Nasdaq Marketplace Rules (or any other exchange on which the Common Shares are then listed). As soon as possible after a conversion has been effected (but in any event within thirty five (305) business daysdays of the Conversion Date), the Company shall deliver to Lender, the converting holder: a certificate or certificates representing the number of shares of Common Stock Shares (excluding any fractional share) issuable by reason of such conversion (including any Accreted Principal Amount, PIK Amounts, Default PIK Amounts and Make-Whole Amount) in such name or names and such denomination or denominations as Lender the converting holder has specified specified; such number of Common Shares as shall be determined by dividing (x) the Accreted Principal Amount (plus any PIK Amount and Default PIK Amounts) with respect to the principal amount converted, plus the amount payable under subsection (e) below, by (y) the Conversion Price; and a new Note representing any portion of the principal amount which was represented by the Note surrendered to the Company in writing.
(iv) connection with such conversion but which was not converted or which could not be converted because it would have required the issuance of a fractional share of Common Shares; provided, however, that for purposes of this Section 6.1(d), the Company shall only be entitled to deliver Common Shares to the converting holder if such Common Shares would not be in excess of the Issuable Maximum or otherwise cause the converting holder to exceed the Beneficial Ownership Limitation. If any fractional share of Common Stock Shares would, except for the provisions hereof, be deliverable upon conversionconversion of this Note, the Company, in lieu of delivering such fractional share, shall in the event the conversion is being consummated in connection with repayment in full of the Note, pay in cash an amount equal to the value Market Price of such fractional share.
(v) share as of the date of such conversion. The issuance of certificates for the shares of Common Stock Shares upon conversion of this Note shall be made without charge to Lender the holder hereof for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common StockShares. Upon conversionconversion of this Note, the Company shall take all such actions as are necessary in order to ensure insure that the shares of Common Stock Shares issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.
(vi) . The Company shall not close its books against the transfer of the shares of Common Stock Shares issued or issuable upon conversion of this Note in any manner which interferes with the timely conversionconversion of this Note. LenderThe Company shall not effect any conversion of this Note, upon and the request holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, the holder (together with such holder's affiliates, and any other person or entity acting as a group together with the holder or any of its affiliates) would beneficially own in excess of the CompanyBeneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the holder and its affiliates shall assist include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (A) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the holder or any of its affiliates and cooperate with (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company in making any required governmental filings subject to a limitation on conversion or in obtaining any government approval prior exercise analogous to or in connection with the conversion limitation contained herein (including, without limitation, making any filings required other Notes) beneficially owned by the holder or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this Section 6.1(h), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6.1(h) applies, the determination of whether this Note is convertible (in relation to other securities owned by the holder together with any affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the holder, and the submission of a Notice of Conversion shall be deemed to be made the holder's determination of whether this Note may be converted (in relation to other securities owned by the Company).
(viiholder together with its affiliates) The and which principal amount of this Note is convertible, in each case subject to such aggregate percentage limitations. To ensure compliance with this restriction, the holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph, and the Company shall take all have no obligation to verify or confirm the accuracy of such actions determination. In addition, a determination as may to any "group" status as contemplated above shall be necessary to assure that all such determined in accordance with Section 13(d) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder. For purposes of this Section 6.1(h), in determining the number of outstanding shares of Common Stock Stock, the holder may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by rely on the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion number of outstanding shares of Common Stock into any other type as stated in the most recent of securities then, and in each such case, the Company will mail following: (A) the Company's most recent Quarterly Report on Form 10-Q or cause to be mailed to Lender a notice in accordance with Section 13 specifyingAnnual Report on Form 10-K, as the case may be, ; (IB) a more recent public announcement by the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, Company; or (IIC) a more recent notice by the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption Company or conversion is to take place, and the time, if any is to be fixed, as Company's transfer agent setting forth the number of which the holders of record of the shares of Common Stock (outstanding. Upon the written or at oral request of the time receivable upon holder, the conversion) Company shall be entitled within two Trading Days confirm orally and in writing to exchange their the holder the number of shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganizationthen outstanding. In any case, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice the number of outstanding shares of Common Stock shall be given at least 30 days prior determined after giving effect to the transaction in question and not less than 10 days prior conversion or exercise of securities of the Company, including this Note, by the holder or its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The "Beneficial Ownership Limitation" shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the record date issuance of shares of Common Stock issuable upon conversion of this Note held by the holder. The limitations contained in respect thereofthis paragraph shall apply to a successor holder of this Note.
Appears in 1 contract
Sources: Note Purchase Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Conversion Procedure. (ia) Prior At any time and from time to time after November 24, 2007, and prior to the conversion payment of this Note in accordance with this Section 5full, the Company shall take holder of this Note may convert all necessary steps to ensure that such or any portion of the outstanding principal and/or accrued interest amount of this Note into a number of shares Common Shares (excluding any fractional share) determined by dividing the principal and/or accrued interest amount designated by such holder to be converted, by the Conversion Price then in effect; provided, that in no event shall any amount of accrued interest due on the Note be converted to Common Stock as are issuable upon conversion are available for such issuanceShares without the Company’s prior written consent, which it may withhold in its absolute discretion.
(iib) Any such Except as otherwise expressly provided herein, each conversion of this Note shall be deemed to have been effected as of the close of business on the date on which a written this Note has been surrendered for conversion request is delivered from Lender to at the Company specifying principal office of the amount of principal, or principal and interest, to be convertedCompany. At such time as such conversion has been effected, the rights of Lender the holder of this Note as such Lender holder to the extent of the conversion shall cease, and Lender the Person or Persons in whose name or names any certificate or certificates for Common Shares are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the shares of Common Stock Shares represented thereby.
(iiic) Notwithstanding any other provision hereof, if a conversion of any portion of this Note is to be made in connection with a registered public offering or a sale of the Company, the conversion of any portion of this Note may, at the election of the holder hereof, be conditioned upon the consummation of the public offering or the sale of the Company, in which case such conversion shall not be deemed to be effective until the consummation of such transaction.
(d) As soon as possible after a conversion has been effected (but in any event within thirty five (305) business daysdays in the case of clause (i) below), the Company shall deliver to Lender, the converting holder:
(i) a certificate or certificates representing the number of shares of Common Stock Shares (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender the converting holder has specified specified;
(ii) payment in an amount equal to the sum of all accrued interest with respect to the principal amount converted, which is not also being converted and has not been paid prior thereto, plus the amount payable under subsection (e) below; and
(iii) a new Note representing any portion of the principal amount which was represented by the Note surrendered to the Company in writingconnection with such conversion but which was not converted or which could not be converted because it would have required the issuance of a fractional share of Common Shares.
(ive) If any fractional share of Common Stock Shares would, except for the provisions hereof, be deliverable upon conversionconversion of this Note, the Company, in lieu of delivering such fractional share, shall in the event the conversion is being consummated in connection with repayment in full of the Note, pay in cash an amount equal to the value Market Price of such fractional shareshare as of the date of such conversion.
(vf) The issuance of certificates for the shares of Common Stock Shares upon conversion of this Note shall be made without charge to Lender the holder hereof for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common StockShares. Upon conversionconversion of this Note, the Company shall take all such actions as are necessary in order to ensure insure that the shares of Common Stock Shares issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.
(vi) The Company shall not close its books against the transfer of the shares of Common Stock issued or issuable upon conversion in any manner which interferes with the timely conversion. Lender, upon the request of the Company, shall assist and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required to be made by the Company).
(vii) The Company shall take all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.
Appears in 1 contract
Conversion Procedure. (i) Prior to the conversion in accordance with this Section 5, the Company shall take all necessary steps to ensure that such number of shares of Common Stock as are issuable upon conversion are available for such issuance.
(ii) Any such conversion shall be deemed to have been effected as of the close of business on the date on which a written conversion request is delivered from Lender to the Company specifying the amount of principal, or principal and interest, to be converted. At such time as such conversion has been effected, the rights of Lender as such Lender to the extent of the conversion shall cease, and Lender shall be deemed to have become the holder of record of the shares of Common Stock represented thereby.
(iii) As soon as possible after a conversion has been effected (but in any event within thirty (30) business days), the Company shall deliver to Lender, a certificate or certificates representing the number of shares of Common Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender has specified to the Company in writing.
(iv) If any fractional share of Common Stock Share would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(v) The issuance of certificates for the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares Shares of Common Stock. Upon conversion, the Company shall take all such actions as are necessary in order to ensure that the shares of Common Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.
(vi) The Company shall not close its books against the transfer of the shares of Common Stock issued or issuable upon conversion in any manner which interferes with the timely conversion. Lender, upon the request of the Company, shall assist and cooperate with the Company in making any required governmental filings or in obtaining any government approval prior to or in connection with the conversion (including, without limitation, making any filings required to be made by the Company).
(vii) The Company shall take all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each issuance).
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (IA) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (IIB) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.
Appears in 1 contract
Conversion Procedure. (i) Prior to the The conversion in accordance with this Section 5, the Company shall take all necessary steps to ensure that such number of shares of Common Class D Stock as are issuable upon conversion are available for such issuance.
(ii) Any such conversion shall be deemed to have been effected as of the close of business on the date on which a written conversion request is delivered from Lender such shares of the Class D Stock are converted pursuant to the Company specifying the amount terms of principal, or principal and interest, to be convertedSection (b) of this Certificate. At such the time as any such conversion has been effectedoccurred, the rights of Lender as such Lender to the extent holder of the conversion shares converted as a holder of shares of the Class D Stock shall cease, and Lender the person or persons such shares of the Class D Stock shall be deemed to have become the holder or holders of record of the shares of the Common Stock represented therebyinto which such shares of the Class D Stock were converted.
(iii) As soon as possible after a conversion has been effected (but in any event within thirty (30) business days), the Company shall deliver to Lender, a certificate or certificates representing the number of shares of Common Stock (excluding any fractional share) issuable by reason of such conversion in such name or names and such denomination or denominations as Lender has specified to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(vii) The issuance of certificates for the shares of the Common Stock upon conversion of shares of the Class D Stock shall be made without charge to Lender the holders of such shares of the Class D Stock for any issuance tax in respect thereof (so long as such certificates are issued in the name of the record holder of such shares of the Class D Stock) or other cost incurred by the Company Corporation in connection with such conversion and the related issuance of the shares of the Common Stock. Upon conversionconversion of each share of the Class D Stock, the Company Corporation shall take all such actions as are necessary in order to ensure that the shares of the Common Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessable, free and clear of all taxes (other than any taxes relating to any dividends paid with respect thereto), liens, charges and encumbrances with respect to the issuance thereof.
(viiii) The Company Corporation shall not close its books against the transfer of the shares of Common Stock of any class issued or issuable upon conversion of shares of the Class D Stock in any manner which interferes with the timely conversionconversion of Stock. Lender, upon the request of the Company, The Corporation shall assist and cooperate with the Company in making any holder of such shares required to make any governmental filings or in obtaining obtain any government governmental approval prior to or in connection with the any conversion of such shares hereunder (including, without limitation, making any filings required to be made by the CompanyCorporation).
(vii) The Company shall take all such actions as may be necessary to assure . Shares of the Class D Stock that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which have been converted shall be immediately delivered by the Company upon each issuance).
(viii) If (A) the Company cancelled and shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right not be held in treasury or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken available for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereofreissuance.
Appears in 1 contract
Conversion Procedure. (a) Unless otherwise provided in this Agreement, each conversion of Common Units of one class into Common Units of the other class shall be effected by (i) Prior delivery to the conversion in accordance with this Section 5, principal office of the Company shall take all necessary steps to ensure a written notice by the Member holding such Common Units stating that such Member desires to convert the number of shares Common Units stated in the notice into Common Units of the other class (and such statement shall obligate the Company to issue such Common Stock as are issuable upon conversion are available for such issuance.
Units) and (ii) Any such ), if the Common Units are represented by certificates, surrender of the certificate or certificates representing the Common Units to be converted. Unless otherwise provided in connection with any conversion, each conversion shall be deemed to have been effected as of the close of business on the date on which a written conversion request is delivered from Lender to the Company specifying the amount of principal, or principal and interest, to be converted. At such time as such conversion notice has been effectedreceived and, in the case of Common Units represented by certificates, such certificate or certificates have been surrendered, and at such time, the rights of Lender the Member holding the converted Common Units as such Lender holder shall cease and the Person or Persons in whose name or names, in the case of uncertificated Common Units being converted into, will appear in the Company's books and records or, in the case of certificated Common Units being converted into, the certificate or certificates for shares of Common Units to the extent of the conversion shall ceasebe issued upon such conversion, and Lender shall be deemed to have become the holder or holders of record of the shares of Common Stock Units represented thereby.
(iiib) As soon Promptly after the conversion of Common Units is deemed effective as possible after a conversion has been effected (but set forth in any event within thirty (30) business days)the immediately preceding paragraph, in the case of uncertificated Common Units, the Company shall promptly reflect such conversion of Common Units in its books and records and, in the case of certificated Common Units, the Company shall issue and deliver to Lender, a in accordance with the surrendering Member's instructions (i) the certificate or certificates representing for the number of shares of Common Stock (excluding any fractional share) Units issuable by reason of upon such conversion in such name and (ii) a certificate representing any Common Units which were represented by the certificate or names and such denomination or denominations as Lender has specified certificates delivered to the Company in writing.
(iv) If any fractional share of Common Stock would, except for the provisions hereof, be deliverable upon conversion, the Company, in lieu of delivering such fractional share, shall pay an amount equal to the value of such fractional share.
(v) The issuance of certificates for the shares of Common Stock upon conversion shall be made without charge to Lender for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of the shares of Common Stock. Upon conversion, the Company shall take all such actions as are necessary in order to ensure that the shares of Common Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessablebut which were not converted.
(vic) The Company shall not close its books against the transfer of the shares of Common Stock issued or issuable upon conversion Units in any manner which interferes would interfere with the timely conversionconversion of any Common Units. Lender, upon the request of the Company, The Company shall assist and cooperate with the Company in making any holder of Common Units required to make any governmental filings or in obtaining obtain any government governmental approval prior to or in connection with the any conversion of Common Units hereunder (including, without limitation, making any filings required to be made by the Company).
(viid) The If the Company shall take all such actions as may be necessary to assure that all such shares in any manner subdivides or combines the outstanding Common Units of one class, the outstanding Common Units of the other class of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which Units shall be immediately delivered by the Company upon each issuance)proportionately subdivided or combined in a similar manner.
(viii) If (A) the Company shall take a record of the holders of its shares of Common Stock (or other securities at the time receivable upon the conversion) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any securities, or to receive any other right or otherwise proposes to make a dividend or distribution; (B) there is proposed any capital reorganization of the Company, any reclassification of the equity interests of the Company, any consolidation or merger of the Company with or into another entity, or any conveyance of all or substantially all of the assets of the Company to another entity; (C) any voluntary dissolution, liquidation or winding-up of the Company; or (D) any redemption or conversion of outstanding shares of Common Stock into any other type of securities then, and in each such case, the Company will mail or cause to be mailed to Lender a notice in accordance with Section 13 specifying, as the case may be, (I) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (II) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of the shares of Common Stock (or at the time receivable upon the conversion) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding up. Such written notice shall be given at least 30 days prior to the transaction in question and not less than 10 days prior to the record date in respect thereof.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Norcross Capital Corp)